An assessment order passed without notice to the legal representative of the deceased assessee is null and void.

Income-tax Appellate Tribunal, Guwahati Bench has referred the following questions at the instance of the assessee, under section 256 (1) of the Income-tax Act, 1961 :

1. Whether on the facts and in the circumstances of the case the Tribunal was correct in law in setting aside the order dated 14.12.82 passed on appeal by the CIT (A) with the direction to the assessing officer to remove the defect by issuing notice to all the legal representatives of the deceased and bringing them on record ?

2. Whether on the facts and in the circumstances of the case the Tribunal was correct in holding that non-issue of notices on the legal representatives of the deceased assessee Md Rafiulla did not invalidate the assessment order passed by the Inspecting Assistant Commissioner of Income-tax and that it was at best a defect which is liable to be corrected and it was not a case fit for cancellation of the assessment ?

2. Facts Lading to this reference may, briefly be stated. For the assessm­ent year 1974-75, the Assessing Officer concluded the hearing of the assessment on 11.2 80. The assessee Md. Rafiulla expired on 27.2.80. On 6.3.80, a letter of assessee's Advocate, dated 29.2.80, informing the death of assessee was delivered to the office of the Assessing Officer. The assessment order was made on 13.3.80 without notice to the Irgal heir or legal representative of the assessee. It was contended before the Assessing Officer that no assessment could be made without issuing notice to the legal representative of the assessee. The contention was rejected by the Assessing Officer. Being aggrieved by the order of the Assessing Officer, the legal representative of the deceased assessee filed an appeal before the Commissioner of Income-tax. The Commissioner of Income-tax accepted the contention and annulled the assessment. The order of the Commissioner of Income-tax was appealed to the Income-tax Appellate Tribunal, Guwahati Bench. The Appellate Tribunal allowed the appeal and the order of the Commissioner of Income-tax was set aside with an observation that the Assessing Officer may remove the defect by issuing notice to all the legal representatives of the deceased and bring them on records. Hence this reference.

3. Sub-section (1) of section 159 of the Income-tax Act provides that where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. Sub-section (2) of section 159 provides, inter alia, that for the purpose of making an assessment of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative, any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of death of the deceased. Under sub-section (3) of section 159, the legal representative of the deceased shall, for the purpose of the Act, be deemed to be an assessee.

4. In view of section 159, in a proceeding taken against the deceased before his death, a notice is required to be issued to the legal representative to have his say before making the assessment order for the legal representative is an assessee by operation of law from the stage of death. The question which, therefore, arises for consideration is whether assessment order made without notice to the legal representative is null and void where death of the assessee occurs between conclusion of the hearing and making of assessment. The Income-tax Act does not provide abatement of assessment proceeding under the Act like abatement of suit under the Code of Civil Procedure. However, under Order 22, Rule 6 of the Civil Procedure Code, if death occurs between the conclusion of hearing and pronouncement of judgment, may in such case be pronounced notwithstanding the dea