(1.) THIS is an IT reference made by theAT (Tribunal) under Section 256 (1) of theat the instance of Revenue (i. e. , CIT) in RA No. 119/ind/1998 arising out of an order dt. 6th May, 1998, passed by Tribunal in ITA No. 393/ind/1994 to this Court for answering following question of law :

"whether, on the facts and in the circumstances of the case, the Tribunal was justified in annulling the assessment framed by the AO against a dead person without bringing the LRs on record "

The question is founded on following facts as stated in statement of case drawn by the Tribunal.

(2.) ONE Dalumal Shyamumal was an assessee. For the asst. yr. 1990-91, the AO passed an assessment order on 24th Feb. , 1993 (Annex. A), under Section 143 (3) of the. It is not in dispute that assessee had expired prior to passing of the assessment order. It is also not in dispute that AO had the knowledge of the death because a letter to that effect was sent to AO on 11th July, 1991, i. e. , much prior to passing of order on 24th Feb. , 1993. It is also not in dispute that no notice as contemplated under Section 159 of thewas sent to any of the legal representatives of assessee. In such circumstances, the order passed by AO on 24th Feb. , 1993, becomes a nullity having been passed against the dead person [see CIT v. Amarchand N. Shroff (1963) 48 ITR 59 (SC) and ITO v. Ram Prasad and Ors. (1972) 86 ITR 145 (SC)].

(3.) IN a case where an assessee dies pending any assessment proceedings, the provisions of Section 159 of theget attracted. It is the duty of AO to ensure compliance of Sub-section (2) of Section 159 before any orders are passed.

(4.) IN our opinion, the Tribunal while deciding the appeal ought to have taken note of Section 159 ibid and should have accordingly remanded the case to AO for ensuring compliance of Section 159 for passing appropriate orders of assessment after due notice to legal representative of deceased assessee. Indeed, once the assessment order is held to be a nullity then in such event consequential direction as contemplated under Section 159 of theshould have been given to AO so that proper assessment order could be passed.

(5.) IN this view of the matter, we answer the question against the Revenue. No costs.