The ITO, Ward-1,, Tenali v. Sri M Raghava Rao, Kolluru., Guntur

ITA 298 299 OF 05&380 OF 09 MYNENI RAGHAVA RAO KOLLURU IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO. 298&299 /VIZAG/ 20 05 ASSESSMENT YEAR S : 1999 - 2000 & 2001 - 02 ITO WARD - 1 TENALI MYNENI RAGHAVA RAO KOLLURU (APPELLANT) VS. (RESPONDENT) PAN NO.AGCPM 1982D ITA NO.380/VIZAG/2009 ASSESSMENT YEARS : 2002 - 03 DCIT CIRCLE - 1(1) GUNTUR MYNENI RAGHAVA RAO KOLLURU (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SHRI R.K. SINGH SR. DR RESPONDENT BY: N O N E ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER : - THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE RESPECTIVE ORDER OF THE CIT(A). 2. DURING THE PENDENCY OF THE APPEAL BEFORE THE TRIBUNAL THE ASSESSEE PASS ED AWAY. THESE FACTS WERE BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE EARLIER COUNSEL OF THE DECEASED ASSESSEE P. GOPI KRISHNA ON 21.1.2010. ACCORDINGLY THE HEARING WAS ADJOURNED TO 19.4.2010 WITH A DIRECTION TO THE DEPARTMENT TO BRING THE LEGAL REPRES ENTATIVES (LRS) ON RECORD . O N 19.4.2010 IT WAS NOTED THAT REVENUE HAS NOT BROUGHT TH E LEGAL REPRESENTATIVES ON RECORD AND THE HEARING WAS ADJOURNED TO 28.6.2010 WITH THE FURTHER DIRECTION TO THE DEPARTMENT/REVENUE TO BRING THE LRS ON RECORD. AGAIN ON 26 .10.2010 NO EFFORT WAS MADE BY THE REVENUE TO BRING THE LRS ON RECORD AND HEARING WAS FURTHER ADJOURNED TO 2.9.2010 FOR BRINGING THE LRS ON RECORD BY THE DEPARTMENT. FURTHER ON 2 ND SEPTEMBER 2010 IT WAS AGAIN NOTICED THAT THE REVENUE DID NOT MAKE ANY E FFORT TO BRING THE LRS ON RECORD AND SOUGHT ITA 298 299 OF 05&380 OF 09 MYNENI RAGHAVA RAO KOLLURU 2 FURTHER TIME TO DO SO . T HE HEARING WAS ACCORDINGLY ADJOURNED TO 25.10.2010 TO BRING THE LRS ON RECORD WITH LAST CHANCE. AGAIN ON 25.10.2010 NO EFFORT WAS MADE BY THE REVENUE TO BRING THE LRS ON RECORD DESPITE O F LAST CHANCE GIVEN TO THEM. THE LD. D.R. FURTHER SOUGHT TIME TO BRING THE LRS ON RECORD THAT TRIBUNAL HESITANTLY AGAIN ADJOURNED THE HEARING FOR 13.12.2010 TO BRING THE LRS ON RECORD AGAIN WITH LAST CHANCE. THEREAFTER ON 13.12.2010 BENCH DID NOT FUNCTIO N AND THE HEARING WAS ADJOURNED TO 4 TH JANUARY 2011 AND ON 4 TH JANUARY 2011 THE REVENUE FURTHER MOVED AN APPLICATION TO SEEK TIME TO BRING THE LRS ON RECORD DESPITE OF LAST CHANCE. AGAIN THE HEARING WAS ADJOURNED TO 10 TH FEBRUARY 2011 FOR BRINGING THE LRS ON RECORD. 3. NOW ON 10.2.2011 THE LD. D.R. AGAIN APPEARED BLANK AS NO EFFORT S WERE MADE BY THE REVENUE TO BRING THE LRS ON RECORD. IN THE LIGHT OF THESE FACTS WE ARE OF THE VIEW THAT REVENUE IS NOT SERIOUS TO PROSECUTE THEIR APPEAL BY BRINGING TH E LRS ON RECORD OF THE DECEASED ASSESSEE. 4. THE PROVISIONS OF RULE 26 OF INCOME TAX APPELLATE TRIBUNAL RULES 1963 CLEARLY SAYS THAT IF THE RESPONDENT EXPIRES DURING THE COURSE OF PENDENCY OF THE APPEAL THE LEGAL REPRESENTATIVES ARE TO BE BROUGHT ON REC ORD AND THE APPEAL SHALL NOT ABATE . BUT THERE SHOULD BE SOME TIME LIMIT IN WHICH THE LEGAL REPRESENTATIVES ARE TO BE BROUGHT ON RECORD. IN THIS REGARD NO SPECIFIC RULES ARE AVAILABLE EITHER IN THE INCOME TAX APPELLATE TRIBUNAL RULES OR IN THE INCOME TAX ACT OR IN THE INCOME TAX RULES. THEREFORE WE HAVE TO RESORT TO THE GENERAL LAWS IN WHICH THE PROCEDURE HAS BEEN LAID DOWN AS TO HOW AND UNDER WHAT CIRCUMSTANCES THE LEGAL REPRESENTATIVES OF THE DECEASED PLAINTIFF OR THE DEFENDANT ARE TO BE BROUGHT ON RE CORD. IN THIS REGARD WE REFER THE ORDER XXII OF CODE OF CIVIL PROCEDURE 1908 WHICH LAID DOWN THE PROCEDURE TO BRING THE LEGAL REPRESENTATIVES ON RECORD IN CASE THE PLAINTIFF O R THE DEFENDANT DIES DURING THE COURSE OF PENDENCY OF THE SUIT OR AN APPEAL . R ULE 4 OF THE SAID ORDER SPECIFICALLY DEALS WITH THE PROCEDURE TO BRING THE LRS ON RECORD IN CASE OF DEATH OF ONE OF THE SEVERAL DEFENDANTS OR OF THE SOLE DEFENDANT. IN THAT RULE IT HAS BEEN CLARIFIED THAT IF ONE OF THE DEFENDANT OR THE SOLE DEFENDANT DIE S AND RIGHT TO SU E SURVIVES THE COURT ON AN APPLICATION MADE IN THAT BEHALF SHALL CAUSE THE LEGAL REPRESENTATIVES OF THE DECEASED DEFENDANT TO BE ITA 298 299 OF 05&380 OF 09 MYNENI RAGHAVA RAO KOLLURU 3 MA DE PARTY AND SHALL PROCEED WITH THE SUIT. IT WAS FURTHER STATED IN THAT RULE WHE RE WITHIN THE TIME LIMIT BY LAW NO APPLICATION IS MADE UNDER SUB RULE 1 THAT SUIT SHALL ABATE AS AGAINST THE DECEASED DEFENDANT. FOR THE SAKE OF REFERENCE WE EXTRACT THE RULE 4 OF ORDER XXII AS UNDER: - 4. PROCEDURE IN CASE OF DEATH OF ONE OF SEVERAL DEFENDANTS OR OF SOLE DEFENDA NT: - (1) WHERE ONE OF TWO OR MORE DEFENDANTS DIES AND RIGHT TO SUE DOES NOT SURVIVE AGAINST THE SURVIVING DEFENDANT OR DEFENDANTS ALONE OR A SOLE DEFENDANT OR SOLE SURVIVING DEFENDANT DIES AND RIGHT TO SUE SURVIVES THE COURT ON AN APPLICATION MADE IN T HAT BEHALF SHALL CAUSE THE LEGAL REPRESENTATIVE OF THE DECEASED DEFENDANT TO BE MADE A PARTY AND SHALL PROCEED WITH THE SUIT. (2) ANY PERSON SO MADE A PARTY MAY MAKE ANY DEFENCE APPROPRIATE TO HIS CHARACTER AS LEGAL REPRESENTATIVE OF THE DECEASED DEFENDA NT. (3) WHERE WITHIN THE TIME LIMITED BY LAW NO APPLICATION IS MADE UNDER SUB - RULE (1) THE SUIT SHALL ABATE AS AGAINST THE DECEASED DEFENDANT. [ (4) THE COURT WHENEVER IT THINGS FIT MAY EXEMPT THE PLAINTIFF FROM THE NECESSITY OF SUBSTITUTING THE LEGAL R EPRESENTATIVES OF ANY SUCH DEFENDANT WHO HAS FAILED TO FILE A WRITTEN STATEMENT OR WHO HAVING FILED IT HAS FAILED TO APPEAR AND CONTEST THE SUIT AT THE HEARING; AND JUDGEMENT MAY IN SUCH CASE BE PRONOUNCED AGAINST THE SAID DEFENDANT NOTWITHSTANDING THE DEATH OF SUCH DEFENDANT AND SHALL HAVE THE SAME FORCE AND EFFECT AS IF IT HAS BEEN PRONOUNCED BEFORE DEATH TOOK PLACE. (5) WHERE (A) THE PLAINTIFF WAS IGNORANT OF THE DEATH OF THE A DEFENDANT AND COULD NOT FOR THAT REASON MAKE AN APPLICATION FOR THE SUBSTITUTION OF THE LEGAL REPRESENTATIVE OF THE DEFENDANT UNDER THIS RULE WITHIN THE PERIOD SPECIFIED IN THE LIMITATION ACT 1963 (36 OF 1963) AND THE SUIT HAS IN CONSEQUENCE ABATED AND (B) THE PLAINTIFF APPLIES AFTER THE EXPIRY OF THE PERIOD SPECIFIE D THEREFORE IN THE LIMITATION ACT 1963 (36 OF 1963) FOR SETTING ASIDE THE ABATEMENT AND ALSO FOR THE ADMISSION OF THAT APPLICATION UNDER SECTION 5 OF THAT ACT ON THE GROUND THAT THE HAD BY REASON OF SUCH IGNORANCE SUFFICIENT CAUSE FOR NOT MAKING THE AP PLICATION WITHIN THE PRIOD SPECIFIED IN THE SAID ACT. THE COURT SHALL IN CONSIDERING THE APPLICATION UNDER THE SAID SECTION 5 HAVE DUE REGARD TO THE FACT OF SUCH IGNORANCE IF PROVED.] ITA 298 299 OF 05&380 OF 09 MYNENI RAGHAVA RAO KOLLURU 4 5. IN TH E CODE OF CIVIL PROCEDURE WHICH IS GENERALLY APPLICABLE TO ALL JUDICIAL PROCEEDINGS A PROCEDURE HAS BEEN LAID DOWN AS TO HOW THE LEGAL RE PRESENTATIVES OF THE PLAINTIFF OR THE DEFENDANTS ARE TO BE BROUGHT ON RECORD IN CASE OF THEIR DEATH DURING THE PENDENCY OF THE SUIT OR THE APPEAL. IT HAS ALSO BEEN MADE CLEA R THAT IF THE ASSESSEE OR THE DEFENDANT DOES NOT TAKE THE NECESSARY STEP WITHIN A PRESCRIBED TIME THE SUIT SHALL BE DISMISSED OR ABATED AGAI NST DECEASED DEFENDANTS. EITHER IN THE INCOME - TAX ACT OR IN THE INCOME - TAX RULES OR IN THE INCOME TAX APPELLATE TR IBUNAL RULES NO PROCEDURE HAS BEEN LAID DOWN AS TO HOW THE LEGAL REPRESENTATIVES ARE TO BE BROUGHT ON RECORD IN CASE OF DEATH OF THE ASSESSEE WHERE HE IS A PARTY TO THE PROCEEDINGS EITHER AS AN APPELLANT OR A RESPONDENT. RULE 26 OF THE INCOME TAX APPELLA TE TRIBUNAL RULES SIMPLY SAYS THAT ` WHERE AN ASSESSEE WHETHER HE BE THE APPELLANT OR A 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 MA Y IF THE ASSESSEE WAS THE APPELLAN T BE CONTINUED BY AND IF HE WAS THE RESPONDENT BE CONTINUED AGAINST THE EXECUTOR ADMINISTRATOR OR O THE R LEGAL REPRESENTATIVE OF THE ASSESSEE OR BY OR AGAINST THE ASSIGNEE RECEIVER OR LIQUIDATOR AS THE CASE MAY BE . IN THIS RULES THE PROCEDURE FOR B RINGING THE LRS ON RECORD HAS NOT BEEN LAID DOWN. THEREFORE WHEN THE RELEVANT RULES ARE SILENT ON A PROCEDUR AL PART THE PROCEDURE LAID DOWN IN GENERAL LAWS OR THE CPC IS TO BE RESORTED. MOREOVER IN THE INCOME TAX APPELLATE TRIBUNAL RULES NO TIME LIMIT IS PRESCRIBED UNDER WHICH THE APPLICATION FOR BRINGING THE LRS ON RECORD IS TO BE FILED . THEREFORE FOR THESE PURPOSES ONE HAS TO RESORT TO THE RULE 4 OF ORDER XXII OF CODE OF CIVIL PROCEDURE 1908 IN WHICH A PROPER PROCEDURE IS LAID DOWN TO BRING THE L EGAL REPRESENTATIVES OF THE PLAINTIFF OR DEFENDANT ON RECORD IN CASE OF HIS DEATH DURING THE PENDENCY OF THE APPEAL OR A SUIT. IN RULE 4 A TIME IS PRESCRIBED UNDER WHICH AN APPLICATION TO BRING THE LEGAL REPRESENTATIVES ON RECORD IS TO BE MADE AND IF THE APPELLANT OR PLAINTIFF FAIL TO DO SO THE SUIT SHALL ABATE. 6. IN THE INSTANT CASE THE REVENUE WAS INFORMED ABOUT THE DEATH OF THE ASSESSEE ON 21.1.2010 AND THERE AFTER VARIOUS OPPORTUNITIES WERE AFFORDED TO THEM TO BRING THE LRS ON RECORD BUT NO EFFORT S WERE MADE BY THE REVENUE DESPITE VARIOUS LAST OPPORTUNITIES. WE THEREFORE OF THE VIEW THAT IN THE LIGHT ITA 298 299 OF 05&380 OF 09 MYNENI RAGHAVA RAO KOLLURU 5 OF PROVISIONS OF ORDER XXII RULE 4 OF THE CPC THE APPEAL FILED BY THE REVENUE ARE ABATED AND WE ACCORDINGLY DISMISS THE SAME. 7. IN THE RESULT TH E APPEALS OF THE REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 14.2 .20 1 1 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 14 TH FE BRUARY 20 1 1 COPY TO 1 ITO WARD - 1 TENALI 2 DCIT CIRCLE - 1(1) GUNTUR 3 SRI MYNENI RAGHAVA RAO S/O KRISHNAIAH PROP. SRI RAGHAVENDRA WINES MAIN ROAD KOLLURU GUNTUR DIST. 3 THE CI T GUNTUR 4 THE CIT (A) GUNTUR 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM