An appeal cannot be considered as having abated if an application for substitution of the legal representatives of the deceased respondent has been moved and is being processed.

1. By way of this petition, the Revenue has sought to review of the order dated September 16, 2011, as passed in Income Tax Appeal No. 66 of 2004 whereby, a co-ordinate Bench proceeded to dismiss the appeal considering it to have abated for failure on the part of the appellant to bring the legal representatives of the sole respondent on record.

2. The order impugned, in its entirety, reads as under :

"This appeal is pending since the year 2004 and no process fees is being paid for issuance of notice to the respondent-assessee.

In the meantime, this appeal was also dismissed for want of prosecution and in non-compliance with the order earlier though the appeal was disposed of on March 13, 2008, yet till date no process fee is paid for issuance of notice to the respondent-assessee. The appeal is pending in default since 2004 onwards till date.

That apart, the sole assessee (respondent herein) has also died way back in the year 2005 and this fact was also taken note by this court in its order-sheet dated July 25, 2005. No efforts are made to bring his legal representatives on record, though more than six years have been passed.

Therefore, no question of issuing any notice to the sole respondent who died in the year 2005 as no application was made to bring his legal representatives on record.

Appeal, therefore, abates for not bringing the legal representatives of the sole respondent, Badri Prasad. The appeal thus fails and is dis missed as having become abated."

3. In brief, the relevant background aspects of the matter could be noticed in the following : In relation to the proceedings concerning the original assessee, Mangi Lal Bhatia (since deceased), under section 148 of the Income-tax Act, 1961 ("the Act"), the notices were allegedly not issued to all his legal representatives but the Assessing Officer ("the AO") proceeded to complete the assessment under the order dated December 27, 1990. In challenge to the order passed by the Assessing Officer, the basic contention urged before the Commissioner of Income-tax (Appeals), Jodhpur ("the CIT(A)"), was that notices having not been issued to all the legal representatives of the original assessee, Mangi Lal Bhatia, the proceedings suffered from fundamental and incurable infirmity; and were wholly without jurisdiction. The Commissioner of Income-tax (Appeals) upheld such a contention and while allowing the appeal, annulled the assessment by his order dated February 26, 1993. Then, the appeal filed by the Revenue against the said order dated February 26, 1993, was dismissed by the Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur ("the Tribunal"), by its order dated January 7, 2004. The Tribunal affirmed the views of the Commissioner of Income-tax (Appeals) and held that the proceedings were wholly without jurisdiction for want of notice to all the legal representatives of the deceased assessee.

4. Aggrieved by the order so passed by the Tribunal, the Revenue preferred the appeal under section 260A of the Act, being D. B. Income Tax Appeal No. 66 of 2004 that was admitted by this court on December 3, 2004, on the following substantial questions of law :

"1. Whether, in the facts and circumstances, initiation of proceedings under section 148 by issuing notice to only one of the legal representatives of the deceased Mangi Lal Bhatia without issue notices to other legal representatives was valid initiation of proceedings ?

2. In case the aforesaid question is answered in the negative whether the completed assessment in such event becomes a nullity ?"

5. In the memo of appeal as initially filed in this court, the party-respondent was described as under :

"Late Shri Mangilal through L/H Badri Prasad Bhatia C/o Radha Krishan Mangilal, Jaisalmer."

6. The notices for hearing of the appeal were issued and it transpired that the said Shri Badri Prasad Bhatia, who was on record as the legal representative of the original assessee, Mangi Lal, had also expired. Then the appellant moved an applica