Late Mohd Ayub Gulamhasan Khan Vs ITO (ITAT Mumbai)
Order Passed Against Deceased Assessee Set Aside – ITAT Restores Case to CIT(A) after Legal Heir Steps In & Explains Delay
The appeal was filed with a delay of 193 days by the deceased Assessee’s son & legal heir, Zaid Mohd. Ayub Khan, seeking condonation. He explained that his father had expired on 08-10-2022, & the family was unaware of ongoing proceedings before NFAC. CIT(A) had passed the order on 28-11-2024 against a dead person, & the legal heirs came to know only upon receiving recovery notices.
Tribunal held that the delay was justified as the circumstances were beyond the legal heir’s control & relied on Collector, Land Acquisition v. Mst. Katiji (1987 AIR 1353 SC) to prefer substantial justice over technical delay.
Since CIT(A) order was passed against a deceased person without hearing the legal heir, Tribunal set aside the order & restored the matter to CIT(A) for fresh adjudication after giving opportunity to the legal representative. The legal heir was directed to file an amended Form-35 & cooperate in the proceedings.
Result: Delay condoned | CIT(A) order against deceased set aside | Matter remanded for fresh hearing – Appeal allowed for statistical purposes.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal has been filed by the assessee challenging the different impugned order dated 28.11.2025 passed under section 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre (NFAC) / CIT(A) for the assessment year 2018-19.
2. At the very outset, I noticed that there is a delay of 193 days in filing the present appeal and in this regard an application for seeking condonation of delay has been filed by the assessee, wherein it has been mentioned as under:
Zaid Mohd Ayub Khan, aged 36 years (PAN: BWQPK2420R), being an individual would like to affirm and state on oath and declare as under:
1. That my father Late Mohd Ayub Gulamhasan Khan (PAN: AGDPK4490M) expired on 08/10/2022 at the age of 55 years.
2. I am making this affidavit for filing the appeal before the Income Tax Appellate Tribunal in respect of A.Y.2018-19 on behalf of my father who expired giving the reasons for delay in filing of an appeal and condonation of delay.
3. That my father expired on 08/10/2022 at the age of 55 years.
4. There was no one knowing about the income tax proceedings being going on in respect of my father case before CIT (Appeal), NFAC, Delhi due to untimely death of my father.
5. It was only after recovery notices start coming that we came to know about the order of CIT (Appeal) by DIN ITBA/NFAC/S/250/2024- 25/1070710309(1) dated 28/11/2024.
6. There was a delay in filling appeal before the Honorable Income tax Appellate Tribunal against the order of CIT (Appeal) due to reason out of the control of assesse.
7. I therefore submit that delay in filing of an appeal before Income Tax Appellate Tribunal may be condoned.
8. There was no intention nor was a deliberate act to delay the matter.
9. The appellant has not in any way benefited by delaying the appeal.
10. The death certificate of my father is attached.
The appellant therefore request that the delay may be condoned and appeal may be admitted.
Whatever stated above is true and correct to the best of my knowledge and belief
4. On the other hand Ld. DR refuted the contents contained in the application and requested for dismissal of the same.
5. Considering the entire factual position as explained before the Bench and also keeping in view, the principles laid down by the Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji& Ors., [1987] AIR 1353 (SC),wherein it has been held that where substantial justice is pitted against technicalities of non-deliberate delay, then in that eventuality substantial justice is to be preferred. In our view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression” sufficient cause” liberally I am inclined to condone the delay in filing the appeal before the Tribunal and admit the appeal to be heard on merits.
6. From the records, I noticed that the date of death as per the assessee’s death certificate is 08.10.22 and the order of Ld. CIT(A) was passed, the on 28.11.2024 i.e at the time when the order of Ld. CIT(A) was passed assessee was no more and thus the order passed was against a dead person. I also noticed that nothing has been placed before me in order to show that the information regarding the death of assessee was ever submitted or filed before Ld.
CIT(A) or any other revenue authorities by the legal representatives but the fact still remains that the impugned order was passed against a dead person. The present appeal has been filed by the legal representatives, who also submitted that no opportunity of hearing was provided to them.
7. Be that as it may, without going into the merits of the issues raised by the assessee and considering the cause, because of which legal representative of the deceased assessee could not put effective representation before Ld. CIT(A). The Bench is of the view that one more opportunity be given to the legal representative of the assessee to represent their case before the Ld. CIT(A). Therefore considering the overall circumstances of the present case, I deem it proper to restore the matter back to the file of Ld. CIT(A) for deciding the matter afresh by providing one more opportunity to the legal representative of the assessee. They are also directed to file amended Form 35 before Ld. CIT(a) and shall not seek any adjournment on unnecessary ground and shall remain cooperative during the course of proceedings.
8. Before parting, I make it clear that our decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by the Ld. CIT(A) independently in accordance with law.
9. In the result the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 31/10/2025
