Mrs. Chitra Venkataraman, J. - The assessee seeks admission of the present Tax Case (Appeal), filed as against the order of the Income Tax Appellate Tribunal Madras 'A' Bench, dated 19.06.2013 in I.T.A.No.2043/Mds/2012 on the following substantial question of law:—
"1.Whether on the facts and in the circumstances of the case the Appellant Tribunal was right in holding that the appellant is not the legal representative within the meaning of section 2(7) and therefore the appeal was not maintainable."
2. It is seen from the facts narrated before this Court that the assessment order was originally made in the name of one Ramesh M.Mehta. Aggrieved by the Assessment Order dated 29.02.2010, an Appeal was preferred by the said assessee before the Commissioner of Income Tax (Appeals). The said appeal was dismissed by the Commissioner of Income Tax (Appeals) under order dated 21.8.2012.
3. It is stated that pending the said Appeal, the assessee breathed his last, as evidenced by the death certificate issued by the Government of Maharashtra. The date of death is noted as 03.12.2011. Thus, the order passed in the name of dead person was challenged in Appeal before the Income Tax Appellate Tribunal by one of the the legal heirs namely Nilesh R.Mehta.
4. The Income Tax Appellate Tribunal pointed out that the deceased had left a 'Will' dated 10.11.2011, appointing Naveen Shuklal Mehta and Nilesh Ramesh Mehta as his executors. The Income Tax Appellate Tribunal pointed out that though the present appellant was a son of the deceased, he had not succeeded to the estate of the deceased nor was he nominated as a trustee of the Trust created under the 'Will', consequently, he could not be termed as legal representative of the deceased for the purpose of proceedings under the Act. Thus, the Appeal was held as legally not maintainable and was dismissed. Aggrieved by the said order, the present Tax Case (Appeal) is preferred, by the assessee.
5. It is seen from Section 2(29) of the Income Tax Act, 1961 legal representative is defined to have the meaning assigned to it in clause (11) of section 2 of the Code of the Civil Procedure, 1908. Section 2(11) of Code of Civil Procedure, read with section 2 (29) of the Income Tax Act, states that 'legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermediary with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
6. A reading of the 'Will' left by the deceased Ramesh M. Mehta shows that the deceased had appointed Mr. Navin Mansukhlal Mehta and Mr. Nilesh Ramesh Mehta, sons of the deceased as executors of 'Will' and proceedings have been initiated before the Bombay High Court for probating the 'Will'. In the background of Section 159 of the Income Tax Act, when the deceased had appointed the appellant namely Nilesh R.Mehta as the executor along with yet another person namely Naveen Shuklal Mehta, the said executors are competent enough to represent the estate of the deceased. The Trust was created by the deceased only under the 'Will'. Since the assessee Ramesh M. Mehta was not alive on the date when the order of the Commissioner of Income Tax was made and that the order cannot stand in the name of a dead person, we feel that in fitness of things the order of Income Tax Appellate Tribunal needs to be set aside, so too the order of the Commissioner of Income Tax (Appeals). Since the assessment order had been passed prior to the date of the death of the deceased, further filing of the appeal by the deceased assessee was rightly done by the assessee. However, on the date of the order passed by the Commissioner of Income tax (Appeals) i.e. on 21.8.2012, the assessee was not alive and he having died on 03.12.2011, the proper course herein would be to set aide those orders of the Commissioner of Income Tax (Appeals) as well as the Income Tax Appellate Tribunal and to remand the matter back to the file of the Commissioner of Income Tax (Appeals) to pass orders in accordance with law. Accordingly, the orders of Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal are set aside and the matter is remanded to the files of Commissioner of Income Tax (Appeals). The present appellant is hereby directed to take necessary steps to file a petition, bring the facts before the Commissioner of Income Tax (Appeals) so on to enable the Commissioner of Income Tax (Appeals) to pass orders on the right person representing the estate of the deceased. Thereafter, it is open to the executors to pursue the appeal remedy, if they are so advised, before the Income Tax Appellate Tribunal.
7. In the result, the Tax Case Appeal is allowed to the extent mentioned above. No costs.