M.R. Sharma, J.
1. Shri Daulat Ram Nagpal filed his return of income on October 13, 1971, for the assessment year 1970-71. The assessment proceedings were initiated by the ITO. By the said time, the aforementioned assessee had passed away. Notices were issued to his legal representatives who appeared before the ITO. The ITO, instead of acting in accordance with the procedure laid down in Section 159 of the I.T. Act, 1961 (hereinafter referred to as ' the Act '), framed an assessment against the deceased assessee. The legal representatives of the deceased assessee filed an appeal before the AAC which was dismissed. They then filed a second appeal before the I.T. Appellate Tribunal, Chandigarh Bench (hereinafter referred to as ' the Tribunal'). The Tribunal disposed of the appeal on a preliminary point raised on behalf of the legal representatives of Daulat Ram, the deceased, that the assessment having been framed against a dead person was non est in the eye of law.
2. The Commissioner then applied to the Tribunal that the following two questions of law be referred to this court for its opinion :
' 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in annulling the assessment and ;
2. Whether, on the facts and in the circumstances of the case, particularly in view of the provisions of section 159 of the Income-tax Act, 1961, the mistake of the Income-tax Officer was not a curable error which could be corrected by the Tribunal itself or by a direction to the Income-tax Officer to proceed with the assessment afresh from the point of the illegality ?'
The Tribunal rejected this application. The first question was not referred on the ground that the factum of death of the deceased assessee was not disputed and an assessment framed against a dead person was obviously non est. The second question was declined to be referred on the ground that it did not arise out of the order passed by the Tribunal. The Commissioner has come up in this petition with the prayer that the Tribunal be directed to state the two questions of law to this court for its opinion.
3. After hearing the learned counsel for the parties, we are of the view that the decision rendered by the Tribunal regarding the second question is unexceptionable. The order passed by the Tribunal does not show that any argument based on Section 159 of the Act was ever raised before it. When a point is not raised before the Tribunal and the latter does not discuss the same in its judgment, it cannot be said that a point of law arose out of the order of the Tribunal on that matter.
4. So far as the first question is concerned, the view taken by the Tribunal is certainly open to challenge. Section 159 of the Act lays down the procedure for framing assessments against dead assessees and, as a matter of fact, the ITO did serve notices on the legal representatives of the deceased assessee and gave them a hearing. However, while passing the final order, he purported to frame an assessment against the deceased assessee against the provisions of the law. For aught we know, it was an error or oversight on the part of the ITO. If the procedure is laid down for continuing assessment proceedings against a deceased person, then it is doubtful to accept the proposition that the assessment proceedings become non est because the order of assessment happens to be passed against the deceased assessee. In any event, at this stage, we are not called upon to give any final opinion about this matter. All that we need to emphasise is that in these circumstances a question of law does arise. We, therefore, allow this petition and direct the Tribunal to refer the following question of law to this court for its opinion ;
' Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in annulling the assessment on the ground that the assessment order in this case was non est in the eye of law ?'
We make no order as to costs.
Bhopinder Singh Dhillon, J.
5. I agree.