The petitioner is the daughter of late M.K.Sakeena, who was an assessee on the files of the 1st respondent. The said M.K. Sakeena died on 07.09.2003, after she had filed a return of income for the assessment year 2001-2002. The assessment for the said year under the Income Tax Act was therefore completed on her husband Sri.N.K.Mahamood, who was the legal heir of late M.K.Sakeena. In the assessment order, which is produced as Ext.P1, the assessee was found liable to pay additional amounts towards tax liability. Aggrieved by Ext.P1 assessment order, Sri.N.K.Mahamood preferred an appeal before the 2nd respondent appellate authority. The said appeal came to be dismissed by Ext.P2 order of the 2nd respondent. Aggrieved by Ext.P2 order, Sri.N.K.Mahamood filed an appeal before the 3rd respondent Appellate Tribunal. Pending consideration of the appeal by the Appellate Tribunal, Sri.N.K.Mahamood also died, on 12.01.2006, as evidenced by Ext.P4 death certificate. The petitioner in the writ petition, therefore, preferred an application for impledment of the legal heirs of late Sri.N.K.Mahamood before the 3rd respondent Appellate Tribunal. It would appear that the said application, filed for the impleadment of the legal heirs of late.Sri.N.K.Muhamood, was not considered by the 3rd respondent Tribunal on the erroneous finding that the said late Sri.N.K.Mahamood had died even before Ext.P2 order passed by the 2nd respondent. The 3rd respondent Tribunal therefore, without passing orders permitting the impleadment of the legal heirs of Sri.N.K.Mahamood, proceeded to reject the appeal by Ext.P3 order. Thereafter, by Ext.P6 order under section 271(1C) of the Income Tax Act, a penalty was also imposed on the petitioner pursuant to the assessment completed in respect of late Smt.M.K.Sakeena for the assessment year 2001- 2002. In the writ petition, Exts.P3 and P6 are impugned.
2. In the statement filed on behalf of the respondents it is admitted by the respondents that Sri.N.K.Mahamood had expired during the pendency of the appeal before the Appellate Tribunal. It is pointed out that, as regards Ext.P6 penalty order, the petitioner was duly heard before passing of the said order and, therefore, the contentions raised by the petitioner in respect of Ext.P3 order would not lie against Ext.P6 order. It is further pointed out that Ext.P6 order is appealable under Section 246 of the Income Tax Act and, therefore, the petitioner should be relegated to the alternate remedy in the Income Tax Act against Ext.P6 order.
3. I have heard Smt.Veena Hari, the learned counsel for the petitioner and Sri.Jose Joseph, the learned Standing counsel for the Income Tax Department.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in Ext.P3 order, the 3rd respondent Tribunal erroneously assumed that Sri.N.K.Mahamood who had filed the appeal before it against Ext.P2 order of the 2nd respondent, had died even before the filing of the said appeal. On the basis of the said finding, the 3rd respondent Tribunal did not permit the petitioner to implead the legal heirs of late N.K.Mahamood as appellants in the appeal before the Tribunal, for the purposes of pursuing the said appeal before the Tribunal. This was a patent mistake committed by the Tribunal and I am of the view that, the 3rd respondent Tribunal ought to have considered and passed orders permitting the petitioner to implead herself as the legal heir of late Sri.N.K.Muhamood who had died on 12.01.2006 during the pendency of the appeal before the Appellate Tribunal. The non- impleadment of the legal heir of late Sri.N.K.Mahamood effectively meant that the Tribunal passed Ext.P3 order in respect of a dead person and thereby rendered its order a nullity in law. Under the said circumstances, therefore, I quash Ext.P3 order of the 3rd respondent Tribunal and direct the 3rd respondent Tribunal to consider the appeal preferred by Late Sri.N.K.Mahamood, against Ext.P2 order of the 2nd respondent, afresh after permitting the petitioner to implead herself as the legal heir of Late N.K.Mahamood in the aforesaid appeal that was filed before the 3rd respondent Appellate Tribunal. The 3rd respondent shall thereafter proceed to pass orders in the appeal after hearing the petitioner within a period of six months from the date of receipt of a copy of this judgment. As regards the challenge in the writ petition against Ext.P6 order, I find that the petitioner was heard in the matter prior to the passing of the said order. The order being one that was passed under Section 271(1) (C) of the Income Tax Act, the remedy of the petitioner lies in filing an appeal against the said order before the Commissioner of Income Tax, Appeals. The petitioner has not demonstrated any valid reason for interfering with the said order at this stage, in proceedings under Article 226 of the Constitution of India. Accordingly, leaving it open to the petitioner to challenge Ext.P6 order before the appellate authority under the Income Tax Act, I refrain from issuing any direction to the respondents with regard to the said order. If the petitioner files an appeal against Ext.P6 order within a period of one month from the date of receipt of a copy of this judgment, the appellate Authority under the Income Tax Act shall consider the said appeal on merits and pass orders within a period of six months from the date of receipt of the appeal, by which time he would also have the benefit of considering the order of the 3rd respondent Tribunal in the appeal against Ext.P2 order of the 2nd respondent.
A.K.JAYASANKARAN NAMBIAR JUDGE mns