Appeal in name of deceased assessee is a curable defect; delay in revised memorandum was condoned.

A revised appeal memorandum filed after the original appeal was lodged in the name of a deceased assessee was treated as a curable defect, because the death had already been intimated and the department later sought substitution of the legal heir. The Tribunal accepted that the delay in filing the revised Form No. 36 arose from inadvertence and from steps taken pursuant to leave granted to correct the defect. It further noted that an appeal against a deceased person is not maintainable, but that such filing does not extinguish the right to file a fresh appeal against the legal heir within limitation or with leave. The delay was condoned and the preliminary objection was rejected.

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Issues: Whether the delay in filing the revised memorandum of appeal could be condoned and whether the preliminary objection to maintainability, based on the appeal having initially been filed in the name of a deceased assessee, was sustainable.

Analysis: The assessee had died during the pendency of proceedings before the first appellate authority, and the fact of death had been intimated to the departmental authorities. The initial appeal was therefore filed in the name of the deceased. However, the Tribunal noted that the department subsequently sought substitution of the legal heir by filing a revised Form No. 36 after the matter was taken up before it. The Tribunal accepted the explanation that the delay occurred due to inadvertence and that the revised appeal was filed pursuant to the leave granted to take necessary corrective steps. It also observed that while an appeal filed against a deceased person is not maintainable, such invalid filing does not extinguish the right to file a fresh appeal against the legal heir within limitation or with leave.

Conclusion: The delay in filing the revised Form No. 36 was condoned and the preliminary objection to maintainability was rejected.

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