Pr. Commissioner Of Income Tax-2, Jodhpur v. Order

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR D.B. Income Tax Appeal No. 147/2018 Pr. Commissioner Of Income Tax-2, Jodhpur ----Appellant Versus Smt. Sita Badoliya, L/H Sh Jethmal Binawara, A-77, KamlaNehru Nagar-II, Jodhpur. ----Respondent For Appellant(s) : Mr. Sunil BhandariFor Respondent(s): Mr. Prateek Gattani for LRs of deceased respondent HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI 27/01/2020 Order 1.This income tax appeal is directed against the order dated19.3.18 passed by the Income Tax Appellate Tribunal (‘ITAT’),Jodhpur Bench, Jodhpur in ITA No.399/Jodh/2016, whereby theappeal preferred by the Revenue against the order dated 30.8.16passed by the Commissioner of Income Tax (Appeals)-2, Jodhpur,has been dismissed. 2.The appellant has preferred an application (No.2/19) to bringthe legal representatives of deceased respondent on record. It isstated that respondent-Smt. Sita Badoliya had expired on 7.10.17,however, this fact was not brought on record and therefore, nosteps could be taken to bring the legal representatives ofdeceased respondent on record before the ITAT. It is prayed that the legal representatives of deceased respondent may be taken onrecord in the present appeal. 3.Learned counsel appearing for the proposed legalrepresentatives of deceased respondent submits that the orderunder appeal has been passed by the ITAT without substitution ofthe legal representatives of deceased respondent is nullity in theeyes of law, deserves to be set aside and question of substitutionof the legal representatives as prayed for in the present appealdoes not arise. Learned counsel submitted that the proposed legalrepresentatives have right to contest the application seekingsubstitution inasmuch as, the substitution prayed for can beallowed only if they represent the estate of the deceased andtherefore, while setting aside the order under appeal, the mattermay be remanded to the ITAT. 4.Learned counsel for the appellant has no objection if theorder under appeal is set aside and the matter is remanded to theITAT. 5.Indisputably, the order passed in favour of or against thedead person is nullity. It is not disputed before this Court that therespondent had expired prior to institution of the present appealand therefore, the question of substitution of the legalrepresentatives of the deceased respondent in the present appealdoes not arise. Obviously, the proposed legal representatives hasright to contest the application seeking substitution, if any prayedfor. 6.In this view of the matter, it would be appropriate to setaside the order under appeal and remand the matter back to theITAT to pass order afresh in accordance with law. 7.Accordingly, the order under appeal is set aside. The matteris remanded to the ITAT to pass the order afresh after substitutionof the person representing the estate of the deceased if any, inaccordance with law. 8.The appeal so also the application (No.2/19) stand disposedof accordingly. (PUSHPENDRA SINGH BHATI),J 14-Vij/- (SANGEET LODHA),J