prpri Appeal before ITAT cannot continue for or against a dead person unless revised form 36 is filed Appeal before ITAT cannot continue for or against a dead person unless revised form 36 is filed

Case Law Details

Case Name : ACIT Vs Chironji Lal Shivhare (ITAT Agra)
Appeal Number : ITA No. 288 to 293/Agr/2014
Date of Judgement/Order : 03/06/2021'2003-04
Related Assessment Year :

ACIT Vs Chironji Lal Shivhare (ITAT Agra)

During the course of hearing on 23/2/2021 it was informed by the Ld.AR for the assessee that the assessee has expired in the month of November 2020, therefore he will not be able to argue the matter and sought time to bring on record the Legal Heirs, death certificate and revised form 36.

It is a matter of record, that despite grant of various opportunities, neither the legal hairs were brought on record nor revised Form 36 were filled by the revenue and on behalf of assessee. A court notice dated 20/4/21 was issued to the assessee. As a matter of fact none appeared on behalf of assessee on 1/4/2021, 20/4/2021, 10/5/2021 and today i.e 3/6/2021.

In our considered opinion it is mandatory to file the revised form 36 after the death of the assessee, as appeals cannot continue for or against a dead person. However, despite knowing the legal requirement by both the sides, the needful was not done in the matter.

In the light of the above, we have no other option but to abate the above appeals filled by the revenue/ assessee, as both the parties failed to file revised form 36 by bringing on record the legal heirs of deceased SH Chironjilal Shivhari , however liberty is granted to both the parties to file the application of revival as and when along with revised form 36 are filled by the parties in accordance with law.

FULL TEXT OF THE ITAT JUDGEMENT

1. The present appeals were filled by the revenue as well as assessee feeling aggrieved by the order passed by the for the assessment year 2003-04- 2008-09, For the grounds mentioned in the respective appeals.

2. During the course of hearing on 23/2/2021 it was informed by the Ld.AR for the assessee that the assessee has expired in the month of November 2020, therefore he will not be able to argue the matter and sought time to bring on record the Legal Heirs, death certificate and revised form 36. It was also directed to communicate the order to both the sides.

3. The above said fact was recorded in the order sheet dated 23/2/2021 the representative of the Counsel had noted down the order sheet on 23/3/2021 thereafter the matter was adjourned to 1/4/2021 for bringing on record the legal heirs of deceased assessee by both the parties.

4. The Ld. DR for the revenue had submitted that the communication were sent to the field for filing the revised form 36 after verifying the list of legal heirs vide letters dated 23/2/2021 and 19/4/2021.However till date nothing had been brought on record .

5. It is a matter of record, that despite grant of various opportunities, neither the legal hairs were brought on record nor revised Form 36 were filled by the revenue and on behalf of assessee. A court notice dated 20/4/21 was issued to the assessee. As a matter of fact none appeared on behalf of assessee on 1/4/2021, 20/4/2021, 10/5/2021 and today i.e 3/6/2021.

6. In our considered opinion it is mandatory to file the revised form 36 after the death of the assessee, as appeals cannot continue for or against a dead person. However, despite knowing the legal requirement by both the sides, the needful was not done in the matter.

7. In the light of the above, we have no other option but to abate the above appeals filled by the revenue/ assessee, as both the parties failed to file revised form 36 by bringing on record the legal heirs of deceased SH Chironjilal Shivhari , however liberty is granted to both the parties to file the application of revival as and when along with revised form 36 are filled by the parties in accordance with law. For the above said purposes we rely upon the decision in the matter of Shri Ram Chand Arora, V/s DCIT in IT(SS)A No.03/Agr/2001) decided on 2/4/2012 wherein it was hels as under

“This is an appeal filed by the assessee against the order dated 30.03.2001 passed by the Ld. DCIT, Inv. Circle, Gwalior for the Block Period 1986-87 to 1996-9 7.

2. The appeal has been on board since long. The last date of hearing of this appeal was 05.03.2012. The ld. Counsel for the assessee Shri P.K. Sehgal appeared on behalf of the assessee and pointed out that the assessee has expired and, therefore, Legal Heir required to be put on record. The case was adjourned Block Period: 1986-87 to 1996-97 for 02.04.2012 i.e. today. The assessee, filed an application alongwith certificate of the assessee to put on record the Legal Heir of the assessee, but the assessee did not furnish revised form no.36 as required under Rule 26 of Income Tax (Appellate Tribunal) Amendment Rules, 2012 vide Notification No.F. 71-Ad(AT)/2012 dated 07.02.2012 which is reproduced as under :-

“Amendment in Rule 26.

Continuation of proceedings after the death or insolvency of a party to the appeal. For the existing Rule 26, the following rule shall be substituted:-

“Where an assessee whether he be an appellant or the respondent to an appeal dies or is adjudicated insolvent or in the case of a company being wound up, the appeal shall not abate and may, if the assessee was the appellant, be continued by, and if he was the respondent be continued against, the executor, administrator or other legal representative of the assessee or by or against the assignee, receiver or liquidator, as the case may be :

Provided that:

(i) The assessee files a revised FormNo.36 duly filled up giving revised name of the party duly verified in the same manner as required by Rule 47 of Income Tax Rules, 1962;

(ii) The revised Form No.36 shall specify the appeal number as originally assigned or, in the event of non-availability of such number on the date of filing the appeal shall be mentioned in the covering letter to enable the Registrar to place fresh Form No.36 in the original file.”

3. In addition to the above, it is also noted that on the date of hearing, i.e. today, nobody appeared on behalf of the assessee nor any application for Block Period: 1986-8 7 to 1996-9 7 adjournment has been filed by the assessee. In the light of these facts and considering the fact that the appeal being an old one and the assessee’s non-interest in prosecuting the appeal, we dismiss the appeal in limine. However, if the assessee is interested in prosecuting its appeal, liberty is granted to the assessee to file revised form no.36 as well as to comply with the other requirements in accordance with law by moving an appropriate application for recall of the order for the purpose of adjudication of the appeal.

4. In the result, the appeal filed by the assessee is dismissed in limini.”

8. Similar view also taken by the coordinate Bench in the matter of Shri Sudamamal Banwani ITA  o.222/Agr/2007, vide decision dated 26.02.2013 wherein it was held as under :

“This is an appeal filed by the Revenue against the order dated 2 1.12.2006 passed by the ld. CIT(A), Gwalior for the Assessment Year 2002-03.

2. On the hearing dated 09.10.2012 the Bench directed he Revenue to file amended Form No.36 and bring the Legal Heir on record. The case was adjourned to 21.11.2012. On 21.11.2012 the case was again adjourned as the Revenue failed ITA No.222/Agr/2007 A.Y. 2002-03 to make compliance of the Order Sheet dated 09.10.2012. The case was adjourned to 03.01.2013 and on this date again the case was adjourned with last opportunity for 26.02.2013 i.e. today. The Revenue has failed to file Form No.36 and to bring the Legal Heir on record as directed by the Bench on 09.10.2012. Under the similar facts and circumstances, the I.T.A.T., Agra Bench in ITA No.359/Agr/2005 in the case of ITO vs. Shri Ghanshyam Das Gupta, vide order dated 22.06.20 12, has decided the matter as under:-

“2. The Revenue has filed the appeal on 11.08.2005. Ld Authorised Representative vide application dated 27.08.2010 pointed out that the assessee has expired and required to put on record the Legal Heir of the assessee. Vide Order Sheet entry dated 28.12.2010 the case was adjourned to 19.01.2011. On 19.11.2011 detailed direction in this regard was given by the I.T.A.T. to put the Legal Heir on record. The ld. Departmental Representative was directed to verify the facts and to do the other formalities on this account. Ld. Departmental Representative was also reminded for filing revised Form No.36 and to bring Legal Heir on record. On 13.02.20 12, it was directed to the ld. Departmental Representative that no further opportunity shall be granted and the case was adjourned to 06.03 .2012. But, the Revenue has failed to comply with the directions of the Bench. However, the ld. Departmental Representative was again directed to make the compliance regarding putting on record the Legal Heirs and filing the revised Form No.36 and the case was adjourned to 04.04.2012. On this date, on the request of the ld. Authorised Representative the hearing was adjourned to 24.05.2012. Ld. Departmental Representative was again directed to comply with the Order Sheet entry dated 19.01.2011 and the case was adjourned to 20.06.20 12 as the last opportunity of hearing today i.e. 20.06.20 12. The ld. Departmental Representative submitted that inspite of his efforts, he was unable to comply with the directions of the I.T.A.T. given vide Order Sheet entry dated 19.01.20 11 and sought further time which has been rejected by the Bench as inspite of giving number of opportunities repeatedly, the Revenue has failed to comply with the ITA No.222/Agr/2007 A.Y. 2002-03 directions as given in the Order Sheet entry dated 19.01.2011. The Revenue has also failed to file revised Form No.36. Under the facts and circumstance of the case, we dismiss the Revenue’s appeal in limine as defective. The assessee has expired and the Revenue has failed to comply with the formalities and procedures which are required as per rule such as filing of revised Form No.36 and others. Therefore, the appeal of the Revenue is dismissed with liberty to make a request for revival of appeal after making compliance of the directions given by I.T.A.T. vide Order Sheet entry dated 19.01.2011 and filing the revised Form No.36.”

3. Since the facts of the present case are identical to the case decided by Agra Bench in the aforesaid ITA No.359/Agr/2005 vide order dated 22.06.2012, following the above order appeal field by the Revenue is dismissed with identical directions.

4. In the result, appeal filed by the Revenue is dismissed.”

9. Therefore, the appeals of the Revenue as well as of assessee are dismissed with liberty to make a request for revival of appeals after making compliance of the directions given by I.T.A.T. vide Order Sheet entry dated 23/2/2021 and filing the revised Form No.36

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