R.K Agrawal, J.:— The Income-tax Appellate Tribunal, Allahabad, has referred the following question of law under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as the “the Act”), for opinion to this court.

“Whether, on the facts and in the circumstances of the case was the Tribunal justified in law in quashing the assessments for the assessment years 1971-72, 1973-74, 1975-76 and 1976-77?”

2. The said question arises out of the order dated May 31, 1979, passed by the Tribunal in ITA Nos. 113 to 116 (Alld.) of 1979, relating to the assessment years 1971-72, 1973-74, 1975-76 and 1976-77. The facts of the case are that the assessee, viz., the late Sri G.P Verma through his son, Sri C.L Verma, who is an individual, derived income for the aforesaid assessment years from hire charges in respect of a cinema known as Uttam Talkies situate at Station Road, District Jaunpur. The return for these four years were due under section 139(1) of the Act, on September 30, 1971, September 30, 1973, September 30, 1975 and June 30, 1976, respectively. As the returns were not filed, the Income-tax Officer issued notices under section 148 of the Act, which was followed, by notice under section 142(1). The notices were again issued on September 27, 1977. The assessee sent a reply on October 14, 1977, and after some correspondence, returns were ultimately filed by Sri C.L Verma for each of the four assessment years in question on November 17, 1977, declaring an income of Rs. 6,000 for each of these years. The Income-tax Officer after making certain disallowances and additions completed the assessment for these four years on an income of Rs. 31,476, Rs. 41,100 Rs. 44,100 and Rs. 48,800 respectively.

3. The appeal filed by the assessee before the Assistant Commissioner failed. However, in the appeal before the Tribunal, a preliminary objection was raised on behalf of the assessee to the effect that the very initiation of the proceedings under section 148 of the Act in these cases was wrong. It was submitted that the late Sri G.P Verma started the business of Uttam Talkies, Jaunpur, as its sole proprietor in the year 1958 and it continued Up to July 27, 1976, when he died. The factum of death of Sri G.L Verma was known to the Department and his legal heirs were not substituted on the record. It was submitted that the ex parte assessment order for the year 1974-75 passed on March 31, 1977, was served on one Sri Radhey Shyam Verma, who was the brother of the deceased. He was compelled to deposit tax for the assessment year 1974-75 on September 7, 1977. Thereafter, the assessee was given notice in respect of the assessment years in question. It was pointed out that the assessee, vide reply dated September 27, 1977, to the notices issued under section 143(3) of the Act had given the names of all the heirs of the late Sri G.P Verma, but even then the Income-tax Officer continued to treat the assessee as the sole heir of the late Sri G.P Verma. In these circumstances, it was argued before the Tribunal that the assumption of jurisdiction by the Income-tax Officer was wrong. The Tribunal accepted the preliminary objection raised on behalf of the assessee and quashed the assessment orders for all the assessment years in question. Thus, the assessee's appeal was allowed by the Tribunal. On these facts, the Tribunal has referred the aforementioned question of law for the opinion of this court.

4. We have heard Sri Ashok Kumar, learned standing counsel, appearing for the Department. No one has appeared on behalf of the assessee, even though the case has been taken in the revised list.

5. It is not in dispute that the assessment for the assessment years 1971-72, 1973-74, 1975-76 and 1976-77 has been made in the name of Sir Chandra Mohan Verma, who is one of the legal heirs of the late Sri G.P Verma. At the time of making the assessment no objection whatsoever was raised either by Sri Chandra Mohan Verma in whose name the assessments in respect of the aforementioned four assessment years have been made or by any other legal representative and the heirs of Sri G.L Verma, that all the heirs and legal representatives ought to have been brought on the record before passing the assessment orders in the name of Sri Chandra Mohan Verma as a legal heir and representative of the late Sri G.L Verma. In fact, except informing the names of all the legal heirs of the late Sri G.L Verma to the Income-tax Officer on September 27, 1977, the heirs and legal representatives did not take_any objection about the requirement/necessity of bringing all the heirs and legal representatives of the late Sri G.L Verma on record. Sri Chandra Mohan Verma participated in the proceedings before the Income-tax Officer. Even in the appeal filed by him before the Appellate Assistant Commissioner in respect of the aforementioned assessment years, no objection whatsoever was raised regarding the non-impleadment of all the heirs and legal representatives of Sri G.L Verma in the proceedings. It was raised only for the first time in the appeal before the Tribunal. Section 159 of the Act deals with legal representatives. It reads as follows:

“159. Legal representatives—(1) Where a person dies, his legal representatives, 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.

(2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section, (1)—

(a) 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 the death of the deceased;

(b) any proceeding which, could have been taken against the deceased if he had survived, may be taken against the legal representative; and

(c) all the provisions of this Act shall apply accordingly.

(2) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee.

(3) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with.

(4) The provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be and to extent to the which they are not inconsistent with the provisions of this section, apply in relation to a legal representative.

(5) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability.”

6. From a perusal of the aforesaid section 159, it will be seen that a legal representative has been made 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 and all the provisions of the Act, have been made applicable in such a case. Further, the legal representative of the deceased has been treated as a deemed assessee and has been made personally liable for any tax liability of the deceased to the extent to which the estate of the deceased is capable of meeting the liability.

7. In Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, the Supreme Court had held that where a complainant or an appellant after diligent and bona fide inquiry ascertains who is the legal representative of a deceased-defendant or respondent and brings them on record within the time limited by law, there is no abatement of the suit or appeal and the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The aforesaid principle laid down by the Supreme Court in the case of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, was invoked by the Supreme Court in respect of the assessment of income of the estate of a deceased person in the hands of the legal representatives under the Income-tax Act, in the case of First Addl. ITO v. Mrs. Suseela Sadanandan, [1965] 57 ITR 168 (SC). However, the Mysore High Court in the case of CIT v. N.A Mandagi, [1967] 63 ITR 173, has held as follows (headnote):

“When a person dies and an assessment has to be made with respect to his income, his estate must be properly represented before the Income-tax Officer, and there could be such representation only if all his legal representatives are served with the notice enjoined by section 24B of the Income-tax Act, 1922. The expression ‘legal representative’ occurring in that section, when there is a plurality of legal representatives, has reference to all those legal representatives.

Notice under section 24B(2) of the Income-tax Act, 1922, should, therefore, be served on all the legal representatives of the deceased and if there was no such service on all of them, the fact that one of those legal representatives had filed a voluntary return before the Income-tax Officer would not clothe the Income-tax Officer with the power to proceed to make an assessment of the income of the estate on the basis of that voluntary return.”

8. In Kamalesh Kumar Mehta v. CIT, [1977] 106 ITR 855, the Calcutta High Court had held that (page 857):

“Section 159 of the Act does not provide for annulment of any assessment, reassessment or recomputation under section 147 of the Act. On the other hand, it expressly provides for continuance of the assessment, reassessment and recomputation from the stage at which they stood on the date of the death of the assessee against his legal representative who in terms of sub-section (3) of section 159 of the Act is deemed to be an asses- see and he is liable to pay the tax which the deceased assessee would have been liable to pay if he was alive, as stated in section 159(1) of the Act.” In Chooharmal Wadhuram v. CIT, [1971] 80 ITR 360, the Gujarat High Court had held that (headnote):

“Where a person dies leaving more than one legal representative, the Income-tax Officer must proceed to assess the total income of the assessee by serving notice under section 22(2) or section 34, as the case may be, on all the legal representatives. If the notice is served on only one legal representative, there would be no complete representation of the estate and the proceedings will be wholly invalid.

There may, however, be cases where, though there are several legal representatives, one may represent the whole interest of the deceased and in such a case there being complete representation of the interest of the deceased before the Income-tax Officer, the assessment made would bind the estate of the deceased. Such cases may arise, for example where one legal representative is managing the entire estate of the deceased and he, therefore, completely represents the interest of the deceased.

Further, where the Income-tax Officer bona fide and diligently believes one or more persons to be the only legal representatives of the deceased and initiates proceedings by serving notices on them and, subsequently, it is found that, besides those served, there were also other legal representatives of the deceased, there is no reason why in such cases the general rule evolved in the field of civil law should not be applied and the proceedings may be held to be valid.”

9. In Mahabir Prasad v. Jage Ram, AIR 1971 SC 742; (1971) 1 SCC 265, the Supreme Court has held that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative and even if there are other heirs and legal representatives and no application for impleading them is made, within the period of limitation prescribed by the Limitation Act, the proceedings will not abate.

10. In N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, (1979) 3 SCC 578 : AIR 1979 SC 1393, the Supreme Court while examining the question as to whether or not a decree against the dead person should be treated as a nullity against his legal representative when he was never brought on the record to defend the case held as follows (page 1397):

“The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will enure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal is, therefore, a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully.”

11. In the case of CIT v. Sumantbhai C. Munshaw, [1981] 128 ITR 142, the Gujarat High Court had held that (page 161):

“Section 159, which merely prescribes the method for making assessment of tax in a special case, does not bear upon the initial jurisdiction of the taxing authority but deals with matters incidental to it. If the assessing authority, in the exercise of his jurisdiction, omits to take one or more of the various procedural steps therein laid down or in taking any of such steps commits an error or even deviates from the statutory mandate, the assessment would be null and void only if the omission, error or breach, as the case may be, is so fundamental as could not be waived because it affects inherent jurisdiction. The legal representative has a right to waive ‘the advantage of any of the statutory provisions made solely for his protection or benefit and not conceived in public interest. Therefore, if the legal representative (which term includes plurality of persons) is present before the taxing authority in some capacity or voluntarily appears in the proceeding without service of notice or upon service of notice not addressed to him but to the deceased assessee, and does not object to the continuance of the proceeding against the deceased person and is heard by the Income-tax Officer, in regard to the tax liability of the deceased and invites an assessment on the merits, such a legal representative must be taken to have exercised the option of abandoning the technical plea that the proceeding has not been continued against him, although, in sub stance and reality, it has been so continued. If and when an assessment order is consequently made in such a proceeding in the name of the deceased assessee, even that would not be a nullity qua the legal representative, not only because he was afforded a full opportunity of being heard in respect of it but also because, having not raised an objection at the appropriate time with regard to the continuance of the assessment proceeding against the deceased person, he must be taken to have known the inevitable outcome of the assessment being made in the name of the deceased and to have opted to treat such an assessment as having been made as the legal representative against him and to waive any objection as to its nullity on the said ground. Such an exercise of option on his part is not against public policy or public morality because the waiver is of a statutory provision which is conceived not in public interest but in the interest of the legal representative. It is, obvious, therefore, that under such circumstances, the contravention of the relevant statutory provision would be a mere irregularity may be a gross irregularity, but not a nullity.”

12. In CIT v. Roshan Lal, [1982] 134 ITR 145, the Delhi High Court had held that (headnote):

“After section 159 of the Income-tax Act, 1961, has become applicable, if proceeding's had already been started they can be continued against the legal representatives as if the proceedings were going on against the legal representatives from the very beginning, and even if they had not started they can be started against the legal representatives. But before he can continue the proceeding's the Income-tax Officer has to serve the legal representatives or at least the legal representatives must be informed or be present before he can pass a valid order.”

13. In view of the principles laid down by the Supreme Court in the case of Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 : AIR 1971 SC 742, and N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, (1979) 3 SCC 578 : AIR 1979 SC 1393, we find ourselves unable to agree that the decisions of the Mysore High Court in the case of CIT v. N.A Mandagi, [1967] 63 ITR 173, the Gujarat High Court in the case of Choohaimal Wadhuram v. CIT, [1971] 80 ITR 360 and the Delhi High Court in the case of CIT v. Roshan Lal, [1982] 134 ITR 145, inasmuch as when one of the legal representatives of the deceased has been brought on record and no objection whatsoever has been taken by the remaining heirs and the legal representatives of the deceased for continuance of the proceedings, the proceedings can be validly continued against only one of the legal representatives who has been brought on record.

14. Applying the principles laid down by the Supreme Court in the case of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049; Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 : AIR 1971 SC 742, and N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, (1979) 3 SCC 578 : AIR 1979 SC 1393, to the facts of the present case, we find that neither Sri Chandra Mohan Verma in whose name the assessments were made nor any other legal representative and the heirs of the late Sri G.L Verma had ever raised any objection about non-impleadment of all the heirs and the legal representatives before the Income-tax Officer during the course of the assessment proceedings. On the other hand, Sri Chandra Mohan Verma co-operated with the Assessing Officer in making the assessments. Thus, for all practical purposes he represented the estate of the late Sri G.L Verma before the Assessing Officer. We are in respectful agreement with the decision given by the Gujarat High Court in the case of the CIT v. Sumantbhai C. Munshaw, [1981] 128 ITR 142, and are of the view that all other heirs and legal representatives of the late Sri G.L Verma wilfully abandoned the plea of abatement and chose to be governed by the assessment orders passed by the Income-tax Officer and the assessment proceedings were not a nullity. We, therefore, hold that the estate Of the late Sri G.L Verma was sufficiently represented by Sri Chandra Mohan Verma, the assessee before us, and the assessments for the aforementioned assessment years have rightly been made in the name of the assessee. The Tribunal had erred in quashing the said assessments.

15. We, therefore, answer the question of law referred to us in the negative, i.e, in favour of the Department and against the assessee. Since nobody has appeared on behalf of the assessee there shall be no orders as to costs.