IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. I.T.A. No. 335 of 2008 DATE OF DECISION : 17.07.2008 Commissioner of Income Tax, Karnal .... APPELLANT Versus Sh. Moti Ram (Deceased) through his legal heir Sh. Dharam Pal ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjeev Kaushik, Advocate, for the appellant-revenue. * * * SATISH KUMAR MITTAL , J. The Revenue has filed this appeal under Section 260 A of the Income Tax Act, 1961 (hereinafter referred to as `the Act') against the order dated 20.8.2007 passed by the Income Tax Appellate Tribunal, Chandigarh Bench (hereinafter referred to as `the ITAT') in ITA No. 439/Chandi/ 2007 for the Assessment Year 2003-04, by raising the following substantial questions of law :- “Whether, on the facts and in the circumstances of the case, the ITAT was right in law in upholding the the order of the CIT (A) holding the return of income and assessment framed as null and void?” ITA No. 335 of 2008 -2- The brief facts of the case are that the return of income in this case was filed on 28.11.2003 after the death of the assessee, as the assessee had expired on 14.9.2003. The return of income was signed by the assessee himself during his life time, but the same was filed after his death. In the return of income, only agriculture income of Rs. 2,20,000/- was shown by the assessee. The Assessing Officer made the assessment under Section 143 (3) of the Act, in spite of the contention raised that the return filed by the assessee was null and void. The legal heirs of the assessee challenged the validity of the assessment order before the CIT (A), who after considering the submissions of the legal heirs of the assessee held that the return filed in the name of the assessee after his death was null and void ab initio. Hence, any action taken on such a return was also null and void. Feeling aggrieved against the order of the CIT (A), the revenue filed appeal before the ITAT, who vide its order dated 20.8.2007 upheld the order of the CIT (A) and dismissed the appeal of the revenue on the ground that the deceased assessee did not authorise any person, including his legal heirs, to sign the return of income, when he was alive. It was further observed that the return filed in this case was null and void, because the assessee was not alive at the time of filing of return and the legal heirs have not signed the return on behalf of the assessee. Against the said order, the revenue has filed the instant appeal, raising the aforesaid substantial question of law. After hearing learned counsel for the revenue and going ITA No. 335 of 2008 -3- through the impugned order, we do not find any merit in the instant appeal. In the present case, it is not disputed that the assessee expired on 14.9.2003, whereas the return of income having the signatures of the deceased assessee was filed on 28.11.2003. When the return was filed, the assessee was not alive, though the return filed was bearing his signatures. Sections 139 and 140 of the Act, which are relevant for the adjudication of the issue raised in this appeal are re-produced below : 139. (1) Every person, - (a) x x x (b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided x x x (1A) x x x 140. The return under section 139 shall be signed and verified- (a) in the case of an individual, - ITA No. 335 of 2008 -4- (i) by the individual himself; (ii) where he is absent from India, by the individual himself or by some person duly authorised by him in this behalf; (iii) where he is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf; and (iv) where, for any other reason, it is not possible for the individual to sign the return, by any person duly authorised by him in this behalf: Provided that in a case referred to in sub-clause (ii) or sub-clause (iv), the person signing the return holds a valid power of attorney from the individual to do so, which shall be attached to the return. (b) x x x (c) x x x (d) x x x (e) x x x (f) in the case of any other person, by that person or by some person competent to act on his behalf.” From a perusal of the aforesaid provisions, it is clear that in case of an individual, the return of income is to be filed, signed and verified by the individual himself or by some person duly authorised by him in this ITA No. 335 of 2008 -5- behalf, if he himself is absent from India. If the assessee is mentally incapacitated from attending to his affairs, the return is to be signed by his guardian or any other person competent to act on his behalf. In the instant case, the return was filed on 28.11.2003. On that day, the assessee had already expired. The return filed with the signatures of the assessee after his death cannot be taken as a valid return filed by the assessee himself. Undisputedly, the return was neither signed nor verified by the legal heirs of the deceased. Further, this Court in The Commissioner of Income Tax, Karnal versus Sh. Rakesh Kumar, Mukesh Kumar, Panipat, ITA No. 256 of 2008, decided on 1.7.2008, has held that the issuance of authorisation for conducting search and search warrant in the name of a dead person and subsequently, passing the order under Section 158-BC (c) / 144 of the Act on such void authorisation of conducting search is null and void. Therefore, the return filed in this case was null and void, because the assessee was not alive at the time of filing of the return. In our opinion, no valid assessment could have been made on the basis of an invalid and void return. Hence, we do not find any illegality in the order, passed by the ITAT, affirming the order of the CIT (A) and no substantial question of law arises for consideration of this Court. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 17, 2008 ( AUGUSTINE GEORGE MASIH ) ndj JUDGE