MAHAVIR SINGH, J.M.: ORDER These appeals of assessee and Revenue are directed against respective orders of CIT(A), Chennai. relevant assessment years involved in these appeals are 1 997-98 to 2002-03. 2. first legal issue in these six appeals of assessee, late Shri A.Y. Prabhakar (Individual) is, whether, reassessment framed by AO on dead person without bringing on record, legal representative, is valid, void or voidable ? 3. briefly stated facts of case are, that, assessee has declared income from house property in respect of following house properties which were constructed with money borrowed from Indian Bank and ANZ Grindlays Bank in 1 989 : S. Amount of borrowed House No. No. capital (Rs.) 5, Lattice Bridge Road, 1. 1 4,54,000 Chennai 225A, Anna Nagar, 2. 8,75,000 Chennai 3. 9, L.B. Road, Chennai 6,30,000 returns were processed under s. 1 43( 1 )(a) or s. 1 43( 1 ) of IT Act, 1 96 1 as case may be for all these assessment years. Subsequently, AO issued notice under s. 1 48 of Act for asst. yrs. 1 997-98 to 200 1 -02 on 12 th Nov., 2003 on reasoning that assessee could not pay back principal amount borrowed as mentioned above. He also could not make payment of interest on borrowed capital. So, bank charged interest on interest. assessee claimed deduction in respect of interest on interest under s. 24( 1 )(vi) of Act. assessee vide letter dt. 27th Nov., 2003 requested AO to treat original returns filed as filed in response to notice under s. 1 48 of Act in all these five years. For asst. yr. 2002-03, regular assessment was framed after issuance of notice under s. 1 43(2) of Act and assessment was completed under s. 1 43(3) of Act. In all these six years, assessments were completed vide different orders dt. 28th March, 2005. During course of assessment proceedings, one of legal representatives, Shri Ravindran Prabhakar brought to notice of AO that assessee, A.Y. Prabhakar expired on 11 th Nov., 2004 vide letter dt. 22nd Nov., 2004 which was filed with ITO on 22nd Dec., 2004. With this letter, xerox copy of death certificate and legal heir certificate were enclosed and as per certificate, two sons of deceased assessee are legal heirs viz., (i) Shri Raghunandan Prabhakar, 34 years and (ii) Shri Ravindran Prabhakar, 30 years. AO without taking any cognizance of this letter, death certificate and legal heir certificate pursued assessment proceedings and passed assessment order on deceased assessee, Shri A.Y. Prabhakar, individual which is dt. 28th March, 2005. Aggrieved, against assessment on deceased person, one of legal heirs Shri Ravindran Prabhakar preferred appeal before CIT(A). Before CIT(A), it was pleaded by legal representative that assessee died on 11 th Nov., 2004 during course of pendency of assessment proceedings and AO has completed assessment in name of assessee without impleading legal heirs. Before CIT(A), ground raised was that this assessment is null and void. For this, legal representative relied on decision of Hon ble Madhya Pradesh High Court in case of CIT vs. Kumari Prabhawati Gupta & Ors ( 1 997) 1 42 CTR (MP) 72 : ( 1 998) 23 1 ITR 1 88 (MP). CIT(A) after relying on provisions of sub-ss. 2(a) and 3 of s. 1 59 of Act and various decisions of Hon ble High Courts and apex Court, upheld assessment orders and given finding in p. 22, para 5.8 which reads as under : "5.8 In view of detailed discussion hereinabove, I hold that there is no case for declaring assessment proceedings as null and void. At most there could have been procedural defect which has been cured by AO as well as by me through notices issued to all legal heirs of appellant. appellant, therefore, fails on ground for all assessment years under consideration." For this finding, CIT(A) has gone through provisions of s. 1 59 of Act and directed AO to issue notices to both representatives to implead both of them as legal representatives and held that "I have also issued notices to both legal heirs in exercise of my powers under s. 25 1 of IT Act." Further, CIT(A) while upholding order of AO, has given following reasoning : "It is clear by continuing appellate proceedings through Authorized Representative of one of legal heirs (it may be mentioned here that Sri Raghunandan Prabhakar has neither appeared before me in response to notice dt. 2 1 st Sept., 2005 nor he has authorized anyone to appear on his behalf before me), legal heirs have ratified all submissions filed before AO and before me after death of Sri A.Y. Prabhakar. In fact, submissions made before AO after death of Sri A.Y. Prabhakar and made before me during course of appellate proceedings are quite similar. I, therefore, do not find any force in this technical objection of Authorized Representative of legal heirs of appellant. It may, however, be noted that despite all these opportunities given to legal heirs of appellant, no submissions on merits of case has been made." Aggrieved, legal representative is in second appeal before Tribunal. Before us, Sri T. Banusekar, chartered accountant appeared on behalf of assessee and Shri Shaji P. Jacob appeared on behalf of Revenue. 4 . We have heard both sides and gone through case records including paper books filed by both sides. We have also gone through relevant provisions of Act as well as case law cited by both sides. deceased assessee, A.Y. Prabhakar has filed original returns of income for asst. yrs. 1 997-98 to 200 1 -02 declaring income from house properties and claimed deduction of interest paid to bank under s. 24( 1 )(vi) of Act. returns were processed under s. 1 43( 1 ) or 1 43( 1 )(a) of Act, as case may be. AO issued notices under s. 1 48 of Act on ground that Assessee has claimed interest on interest as deduction under s. 24( 1 )(vi) of Act and accordingly, income has escaped assessment. notice under s. 1 43(2) of Act, for asst. yr. 2002-03 was issued. AO issued notices under s. 1 48 of Act for asst. yrs. 1 997-98 to 200 1 -02. assessee filed letter dt. 27th Nov., 2003 stating that original returns filed be treated as filed in response to notices issued under s. 1 48 of Act for these five assessment years. Subsequently, notices under s. 1 43(2) of Act were issued and claim of interest on unpaid interest was disallowed by AO in these five assessment years while framing assessments under s. 1 43(3) r/w s. 1 47 of Act and for asst. yr. 2002-03, assessment was framed under s. 1 43(3) of Act. During pendency of reassessment as well as assessment proceedings, Assessee expired on 11 th Nov., 2004 and one of legal heirs filed letter to AO which is dt. 22nd Nov., 2004 and same was received in income-tax office on 22nd Dec., 2004. relevant letter which is part of assessment records has been filed in assessee s paper book at p. 2 and relevant letter is reproduced as it is : "Dt. 22nd Nov., 2004 From, Mr. Ravi Prabhakar 52/5 1 , IIIrd Main Road, Gandhi Nagar, Adyar, Chennai - 600 20. To, Asstt. CIT Circle IV, Nungambakkam High Road, Chennai-600 34. Sir, Sub : Intimation of expiry of A.Y. Prabhakar, Individual Sub : Intimation of expiry of A.Y. Prabhakar, Individual Pan No. AAAPP7642M (G.I. No. 1 7 1 8 P) Reg. I would like to inform you that my father Mr. A.Y. Prabhakar expired on 11 t h Nov., 2004. xerox copy of death certificate and legal heirs certificate are enclosed herewith for your records. As per legal heirs certificate Mr. Raghunandan Prabhakar and Mr. Ravi Prabhakar are only legal heirs of deceased Mr. A.Y. Prabhakar. This is for your kind information. Thanking you, Yours faithfully Sd/- (Ravi Prabhakar) Enclosed : 1 . xerox copy of death certificate duly notarized 2. xerox copy of legal heirs certificate duly notarized." 5. It is seen from above letter that death certificate and legal heir certificate were produced before AO for their records wherein following persons were declared as legal heirs of deceased assessee, viz., (i) Mr. Raghunandan Prabhakar and (ii) Mr. Ravi Prabhakar. It is seen that both legal heirs/legal representatives are adults. Despite this letter, it is observed from assessment orders passed for asst. yr. 1 997-98 that assessment was framed on deceased assessee, Mr. A.Y. Prabhakar, Individual as if he is alive. relevant portion of assessment order is being reproduced as it is : "Assessment order in case of Shri A.Y. Prabhakar (Individual) Asst. yr. 1 PAN :AAAPP3662M 997-98 ITNS 65 Income-tax Department Shri A.Y. 1 . Name of Assessee : Prabhakar (Individual) 5 1 , III Main 2. Address : Road, Gandhi Nagar, Adyar, Chennai 20 3. PAN/GIR No. : AAAPP7642M 4. Ward/Circle/Range : Circle IV 5. Status : Individual 6. Assessment Year : 1 997-98 7. Whether resident/resident but not ordinarily resident/non- : Resident resident 8. Method of accounting : Cash system 9. Previous year : 1 996-97 1 . Nature of Business(s) : Rental income 11 . Date(s) of hearing : Various dates 12 . Date of order : 28th March, 2005 1 3. Section and sub-section 1 43(3) r/w s. 1 under which assessment is : 47 made Assessment order Assessee filed return of income for asst. yr. 1 997-98 on 30th June, 1 997 showing total loss at Rs. 3,7 1 ,283. This was processed under s. 1 43( 1 ) on 8th Sept., 1 997. Notice under s. 1 48 was issued and served on assessee on 12 th Nov., 2003. In response to notice under s. 1 48, assessee filed letter dt. 27th Nov., 2003 stating that original return already filed may be treated as return filed in response to notice under s. 1 48. Notice under s. 1 43(2) was issued. In response to notice issued under s. 1 43(2) Authorized Representative of assessee Shri R. Subramanian, chartered accountant attended and filed details called for. case is discussed with him." 6. learned counsel of assessee argued that no assessment can be made on dead person but in this case, assessment is made on dead person, and, therefore, same is not valid particularly when AO was informed of death of assessee which is clear from above facts. Even death certificate as well as legal heir certificate were also submitted before AO. But AO has not brought on record or not impleaded legal heirs. Even after these facts brought on record, AO has passed assessment order on deceased assessee. He further argued that on death of person, his legal entity ceased to exist and no assessment order can be passed against such dead person and in any case if assessment order is passed against dead person, that would be null and void. He further argued that there are two legal heirs of assessee and both are major as per legal heir certificate produced before AO and both should have been impleaded as legal representatives. He argued that expression "legal representative" mentioned in s. 1 59 of Act takes in plurality of legal representatives. If there are more than one legal representative of deceased person, then all must be impleaded to make representation of estate complete. He further argued that effort of CIT(A) to implead legal heirs at appellate stage is of no consequence. Once assessment order is passed on dead person, AO cannot implead legal heir. He further argued that in such circumstances, defect cannot be cured by setting aside matter and directing AO to complete assessment after issuing relevant notices and completing procedure. He further argued that CIT(A) has given finding that it is clear that it is not valid order. He has drawn our attention at p. 1 8 and relevant portion starting from third line reads as under : "However, in view of preponderance of case law, it is to be held that in present case, defect crept in at time when assessment was concluded present case, defect crept in at time when assessment was concluded without issuing notice to one of two legal heirs. In view of above discussion this defect cannot make assessment ab initio void. Such defect is curable defect. However, since now there is no provision for setting aside assessment, I direct AO to remove this defect by issuing notices to both legal representatives of appellant. AO issued notices on 6th Sept., 2005 to both legal representatives of appellant namely, Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar. appellant, however, relied on decision of Madhya Pradesh High Court mentioned above and also stated that legal heirs cannot be impleaded after assessment has been completed. appellant has also stated that remand proceedings cannot be said to be proceedings under IT Act." Further, he relied on various case law. 7 . On other hand, learned Departmental Representative has also filed paper book, copy of authorization after death of assessee and copy of death certificate and legal heir certificate before CIT(A) as well as Tribunal. He argued that Authorized Representatives appeared before AO on 7th Feb., 2005, filed his authorization and was heard on matter. When this being fact, there should not be any grievance for assessee. Even he has drawn our attention to copy of written submission made by legal representative before AO during course of assessment proceedings. A O considered this written submission and passed assessment order and there should not be any grievance for legal heir about denial of natural justice. Further, he argued that before CIT(A), Sri Ravi Prabhakar filed this appeal as legal heir and he is same person who has signed authorization letter issued to chartered accountant, who made written submission before AO during course of assessment proceedings and filed appeals before CIT(A) as well as Tribunal. He argued that it shows that he was participating in all matters connected with income-tax proceedings as legal heir of deceased assessee. learned Departmental Representative filed paper book containing pp. 1 to 1 7 including petition, to bring on record legal representatives before Tribunal by Asstt. CIT. relevant petition is reproduced for clarity of facts as under : "Before ITAT Bench, Chennai IT(SS)A No. 2000 &1 /2004; Asst. yr. 1 997-98 to 2002-03 Asstt. CIT, Business Circle-IV, Appellant Chennai-600 34. A.Y. Prabhakar (Late) (Indl.) 5 1 , III Main Road, Respondent Gandhi Nagar, Chennai - 20. Petition to bring on record legal representatives It is ascertained that (respondent) Sri A.Y. Prabhakar has passed away on 11 th Nov., 2004. In view of this, legal representatives of respondent are to be brought on record in respect of above appeal proceedings. In this connection, Sri Ravi Prabhkar, s/o (Late) Sri A.Y. Prabhakar has filed death certificate, heir certificate and also letter obtained from other legal heir (his brother) Sri Raghunandan Prabhakar nominating him to pursue appeal (letter enclosed). Hence it is prayed that Sri Ravi Prabhakar, s/o (Late) Sri A.Y. Prabhakar may kindly be impleaded in above appeal proceedings. Sd/- (S. Chandrasekaran) Place : Chennai-34 Asstt. CIT, Date : 1 th Feb., 2006 Business Circle IV, Chennai -34." 8. In view of facts narrated above and considering arguments of learned counsel of assessee as well as learned Departmental Representative, first of all, we have to go through definition of expression "legal representative". "legal representative" has been defined in cl. (29) of s. 2 of Act which reads as under : "2(29) legal representative has meaning assigned to it in cl. ( 11 ) of s. 2 of CPC, 1 908 (5 of 1 908);" Sec. 2( 11 ) of CPC reads as under : " legal representative means person who in law represents estate of deceased person, and includes any person who intermeddles with estate of deceased and where party sues or is sued in representative character person on whom estate devolves on death of party so suing or sued;" expression "legal representative" as defined in CPC means person w h o represents estate of deceased, and includes any person who intermeddles with estate of deceased and where party sues or is sued in representative character person on whom estate devolves on death of party so suing or sued. definition is inclusive in character and its scope is wide and it is not confined to legal heirs only instead it stipulates person who may or may not be heir, competent to inherit property of deceased but he should represent estate of deceased person. All such persons would be covered by expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent estate of deceased. This view has been upheld by Hon ble apex Court in case of Custodian of Branches of Banco National Ultramarino vs. Nalini Bai Naique AIR 1 989 SC 1 589, 1 59 1 . It is to be noted that even Hon ble apex Court and jurisdictional High Court has defined meaning of "legal representative" where word legal representative means all legal representatives of deceased. Hon ble Madras High Court in case of Muniyammal vs. Addl. ITO ( 1 960) 38 ITR 664 (Mad) has held that all legal representatives should concur in applying copies of statement to ITO and further, it has also held as under : "(ii) that in case where person died leaving more than one legal representative, estate was represented by all of them jointly, and not by one of them alone. As between co-heirs, one was not agent of other. Sec. 24B of IT Act made legal representative of deceased person liable to tax assessed as payable by deceased, liability being however limited to extent of estate left by deceased. word "legal representative" in s. 24B, sub-s. ( 1 ), meant all legal representatives collectively, if there were more than one. When there was plurality of legal representatives all of them should concur in applying for inspection of statements made to ITO or for obtaining certified copies. But where they did not agree, one of them alone could not be held to represent deceased and, therefore, one of them alone could not have inspection;" 9. According to general rule, if person dies leaving behind him more than one heir, under s. 1 59 of Act, AO is under obligation to proceed to assess total income of deceased against all legal representatives. expression "legal representative" in s. 1 59 of Act takes in plurality of legal representatives. Thus, if there are more than one legal representative of deceased person, all must be impleaded to make representative of estate complete and if notice is served on only one of legal representatives, there would not be complete representation of estate and proceeding will be wholly invalid. This view has been held by Hon ble Gujarat High Court in case of Chooharmal Wadhuram vs. CIT ( 1 97 1 ) 80 ITR 360 (Guj) and while dealing with similar issue, it was held as under (headnote) : "The notices issued by ITO for reopening assessment of deceased, Chooharmal Wadhuram, for asst. yrs. 1 946-47 and 1 947-48 under s. 34( 1 )(a) were addressed to Chooharmal Wadhuram, legal representatives Daulatram & Ors. and though there were, admittedly, besides Daulatram, other legal representatives of Chooharmal Wadhuram, namely, three other sons and widow, notices were served only on Daulatram, and were not served on other legal representatives. There was nothing to show that Daulatram was in management or administration of entire estate of deceased and there was also no finding of Tribunal nor any material on record to show that Daulatram represented estate of deceased with consent, express or implied, of other legal representatives : consent, express or implied, of other legal representatives : Held, that service of notices on Dulatram alone was not sufficient to bind estate of Chooharmal Wadhuram as Daulatram did not completely represent estate of deceased, and, therefore, assessment of income of deceased, Chooharmal Wadhuram, was not in compliance with requirements of sub-s. (2) of s. 24B, and reassessment orders under s. 34( 1 ) were invalid : Held also, that assessment orders were not valid even against Daulatram, as estate was not properly represented and assessment of income of deceased person must be made on all those who represent his estate or interest wholly and completely." In view of case law of Hon ble apex Court, jurisdictional High Court and Gujarat High Court, discussed above, we fairly feel that all legal heirs must be proceeded against deceased particularly when there are more than one legal heir of deceased as per legal heir certificate and representation made before AO. In present case, AO was informed much before completion of assessment that assessee has died on 11 th Nov., 2004. AO has not taken any step to implead legal heirs and assessment order was passed on deceased assessee treating assessee as alive. In event of death of assessee, names of legal representatives should be substituted and there may be any one of five contingencies, in respect of assessment year. In present case only one contingency will apply, i.e., assessment was taken up but could not be completed and assessee dies before such completion. In circumstances, AO has to bring all legal representatives on record and continue proceedings on legal representatives as legal representatives of assessee. No doubt, proceedings have to be continued from point where death took place, and income of deceased is to be assessed in hands of legal representative as if latter was assessee. s. 1 59(2) extends personality of deceased and treats legal representative as assessee in respect of all proceedings even against deceased already taken. Thus, where assessee died before proceedings were completed, it is incumbent under s. 1 59(2) on AO to bring legal representative of deceased on record and to proceed from stage it was left at time of death of deceased. 1 . Now, we have to go through provisions of ss. 1 59( 1 ), (2) and (3) of Act which reads as under : " 1 59( 1 ) Where person dies, his legal representative shall be liable to pay and in like manner and to same extent as deceased. (2) For purpose of making assessment (including assessment, reassessment or computation under s. 1 47) of income of deceased and for purpose of levying any sum in hands of legal representative in accordance with provisions of sub-s. ( 1 ). (a) Any proceeding taken against deceased before his death shall be deemed to have been taken against legal representative and may be continued against legal representative from stage at which it stood on date of death of deceased; (b) Any proceeding which could have been taken against deceased if he had survived, may be taken against legal representative, and (c) All provisions of this Act shall apply accordingly. (3) legal representative of deceased shall, for purposes of this Act, be deemed to be assessee." As per provisions of s. 1 59(2)(a) of Act, it is clear that any proceedings taken against deceased before his death shall be deemed to be taken against legal representative and may be continued against legal representative from stage at which it stood on date of death of deceased. It means that AO has to bring on record all legal representatives and proceedings will continue on legal representatives as deemed assessee from stage at which it stood on date of death of assessee. In present case in hand, AO was informed about death of assessee and complete details regarding legal heirs and it was supported by legal heir certificate and death certificate of assessee. But AO never tried to bring on record legal representatives as informed to him. However, learned Departmental Representative strongly relied on view that one of legal representatives, Sri Ravi Prabhakar, who submitted legal heir certificate and informed AO before completion of assessment proceedings, is assessee before AO as well as before first appellate authority. To support view, he relied on decision of Hon ble Punjab & Haryana High Court in case of Swaran Kanta vs. CIT ( 1 989) 1 76 ITR 29 1 (P&H). 11 . We have gone through decision cited by learned Departmental Representative and observed that in that case, legal representative was impleaded and then assessment was completed. No doubt, assessment was completed in name of deceased person instead of legal heir and there was finding of Tribunal that since legal heir of deceased was impleaded and was heard, it could not be said that assessment order was passed on dead person. Here, in present case, legal representatives were not impleaded despite receipt of information by AO, assessment order was passed on dead person. Further, learned Departmental Representative relied on decision of Hon ble Madhya Pradesh High Court in case of Smt. Kaushalyabai vs. CIT ( 1 998) 1 49 CTR (MP) 205 : ( 1 999) 238 ITR 1 08 (MP). In this case, Hon ble High Court found that there is only legal representative, i.e., widow of assessee who has fully participated in proceedings and defect if any, stands automatically cured. In view of this fact, Hon ble Madhya Pradesh High Court has answered this question against assessee and in favour of Revenue. In present case in hand, there are two legal representatives and both have not been impleaded in assessment proceedings. Hence, facts in case cited above are entirely distinguishable from facts of present case in hand. 1 2 . Further, he relied on case law of Hon ble apex Court in case of CIT vs. Jai Prakash Singh( 1 996) 1 32 CTR (SC) 262 : ( 1 996) 2 1 9 ITR 737 (SC). facts in this case are that return was filed voluntarily by one out of ten legal representatives disclosing income of deceased and moreover, legal representative complied with notices under ss. 1 42( 1 )(a) and 1 43(2) of Act. assessment was completed and legal )(a) and 1 43(2) of Act. assessment was completed and legal representative has not raised any objection during course of assessment but raised objection in appeal that notices have not been issued to other legal representatives. Hon ble apex Court has held that assessment was erroneous but not null and void. But, in present case, despite information to AO, he has not impleaded any of legal heirs and assessment was framed on dead person. Therefore, facts of present case are distinguishable from facts of case of Hon ble apex Court. 13 . learned Departmental Representative, further, relied on decision of Hon ble Supreme Court in case of Addl. ITO vs. Mrs. Suseela Sadanandan & Anr. ( 1 965) 57 ITR 1 68 (SC) wherein it has laid down certain principles and relevant finding of Hon ble apex Court reads as under : "Their Lordships set aside order of High Court in Suseela Sadanandan vs. Addl. ITO ( 1 963) 47 ITR 3 1 8 (Ker) and remanded matter to High Court for fresh disposal after considering : (i) whether person on whom notices were served was in possession and management of entire estate of deceased, and if so whether he would be legal representative; (ii) even if he intermeddled only with part of estate, whether ITO bona f i d e treated him as representative of estate; (iii) whether he, in fact, represented estate and other executors or representatives expressly or impliedly accepted his representation; and (iv) whether first respondent who was not party to assessment proceedings could question enforceability of final assessment order against person on whom notice was served." In above case law referred by learned Departmental Representative, either there are exceptional cases or service of notice to one of legal representatives was sufficient, or there was only one legal representative who participated in proceedings. But in present case in hand, there are two legal representatives and AO was informed before completion of assessment that assessee died leaving behind two legal heirs and copy of legal heirs certificate along with death certificate was filed. However, assessment was completed on dead person. There may be cases where there are several legal representatives but one may represent whole interest of deceased and in such cases there being complete representation of interest of deceased before AO, assessment made would bind estate of deceased. We agree with learned Departmental Representative that such cases may arise, where one legal representative is managing entire estate of deceased and, he, therefore, completely represents interest of deceased. This view has been fortified by Hon ble Gujarat High Court in case of Chooharmal Wadhuram (supra) and Hon ble apex Court in case of Mrs. Suseela Sadanandan & Anr. (supra). Then there may be cases, where one legal representative is served, he appears in proceedings with consent, express or implied, of other legal representative, in such cases too, estate would be properly and completely represented by one legal representative and assessment would be binding on estate. Even, where AO bona fide and diligently believes one or more persons to be only legal representatives of deceased and initiates proceedings by serving notice on them and subsequently it is found that, besides those served, there were also other legal representatives of deceased. Hon ble apex Court has also supported this view in case of Daya Ram vs. Shyam Sundari AIR 1 965 SC 1 49, 1 54 wherein it has held that : "...... where plaintiff or appellant after diligent and bona fide enquiry ascertains who legal representatives of deceased defendant or respondent are and brings them on record within time limited by law, there is no abatement of suit or appeal, that impleaded legal representatives sufficiently represent estate of deceased and that decision obtained with them on record will bind not merely those impleaded but entire estate including those not brought on record." But facts in present case are entirely different. During pendency of reassessment proceedings, assessee expired on 11 th Nov., 2004 and one of legal representatives filed letter to AO intimating death of assessee along with xerox copy of death certificate and legal heir certificate. As per legal heir certificate, there are two legal representatives of deceased, i.e., Shri Raghunandan Prabhakar and Shri Ravi Prabhakar. It is observed from assessment order that assessment order is passed on dead person and relevant assessment order is reproduced in pp. 7 and 8 at para 5 of this order. Both legal representatives were not impleaded. It is para 5 of this order. Both legal representatives were not impleaded. It is fact that assessee died before completion of assessment and that also during pendency of assessment proceedings. On death of person, his legal personality ceases to exist and thereafter no order can be passed against such dead person. If any order is passed against that dead person, that would be nullity. This view has been held by Hon ble apex Court in case of CIT vs. Amarchand N. Shroff ( 1 963) 48 ITR 59 (SC). While dealing with situation, Hon ble apex Court has held as under : "The correct position is that apart from s. 24B no assessment can be made in respect of income of person after his death : see Ellis C. Reid vs. CIT ( 1 930) 5 ITC 1 0. In that case, and that was case before s. 24B was enacted, person was served with notice under s. 22(2) of IT Act but no return was made within period specified and he died. It was held that no assessment could be made under s. 23(4) of Act after his death. At p. 16 it was observed : It is to be noticed that there is throughout Act no reference to decease of person on whom tax has been originally charged, and it is very difficult to suppose omission to have been unintentional. It must have been present in mind of legislature that whatever privileges payment of income-tax may confer, privilege of immortality is not amongst them. Every person liable to pay tax must necessarily die and, in practically every case, before last instalment has been collected, and legislature has not chosen to make any provisions expressly dealing with assessment of, or recovering payment from, estate of deceased person. individual assessee has ordinarily to be living person and there can be no assessment on dead person and assessment is charge in respect of income of pervious year and not charge in respect of income of t h e year of assessment as measured by income of previous year : Wallace Brothers & Co. Ltd. vs. CIT ( 1 948) 1 6 ITR 240 (PC). By s. 24B legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond object for which it was enacted. As was observed by this Court in Bengal Immunity Co. Ltd. vs. State of Bihar ( 1 955) 2 SCR 603 legal fictions are only for definite purpose and they are limited to purpose for which they are created and should not be extended beyond that legitimate field. In present case fiction is limited to cases provided in three sub-sections of s. 24B and cannot be extended further than liability for income received in previous year." 14 . No doubt, provisions of s. 1 59(2) of Act provide that any proceedings commenced before death of deceased may continue thereafter against legal representative and any proceedings which could have been taken against deceased if he is surviving may be taken against legal representative but proceedings can only continue against legal representative and not against dead person. There are exceptions to general rule where it is shown that legal representative of deceased assessee, who was present before AO, either voluntarily or in response to notice issued to deceased but served upon him or his agent allows assessment proceedings to continue without any objection, then legal representative cannot take objection against assessment in further appeals. Yes, we agree with this. In present case, assessee has taken objection at initial stage that assessee has died and information was given to AO by writing letter that there are two legal heirs and they filed copy of death certificate and legal heirs certificate. Even if we presume that argument of learned Departmental Representative is correct, that one of legal representatives participated in proceedings but other legal representative was not present in assessment proceedings by any expressed or implied consent, what will be consequence of order passed on dead person. Now, under general law, it is fundamental principle, well established , that decree passed by Court without jurisdiction is nullity and that its validity could be set up whenever and whatever, it is sought to be enforced or relied upon, and even at stage of execution and even in collateral proceedings. defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of subject-matter of action, strikes very authority of Court to pass any decree and such defect cannot be cured by consent of parties. This view has been strongly supported by Hon ble apex Court s decision in case of Kiran Singh vs. Chaman Paswan AIR 1 954 SC 340, 342. provisions of s. 1 59(2) of Act makes it very clear that any proceedings of assessment commenced before death of deceased may continue but only against legal representative and in proceeding which could have been taken against deceased if he had survived, may be taken but only against legal representative and no order can be passed on dead person. No doubt, legal representatives are deemed assessees. Hon ble Madhya Pradesh High Court has dealt with this issue in case of CIT vs. Kumari Prabhawati Gupta & Ors. ( 1 997) 1 42 CTR (MP) 72 : ( 1 998) 23 1 ITR 1 88 (MP) wherein it has held that AO has to bring legal representative on record and continue proceedings against legal representative. proceedings are to be continued from stage where death took place and income of assessee is to be assessed in hands of legal representative. legal representative is deemed as assessee in respect of all proceedings even against deceased already taken and if assessee died before proceedings of assessments were completed, it is incumbent under s. 1 59(2) of Act, that AO has to bring legal representative on record from stage where it was left at time of death of deceased. Hon ble Madhya Pradesh High Court has held as under : "We have heard learned counsel for parties and perused records. It i s admitted fact that assessee died before proceedings for assessment were completed. Since proceedings had not been completed and it was yet to be completed, therefore, it was incumbent under s. 1 59(2) of Act on ITO to have brought legal representative of deceased on record and proceeded from stage where it was left at time of death of deceased. According to findings of Tribunal, proceedings had not been completed before death of assessee; therefore, Tribunal has rightly held that assessment should be completed under s. 1 59(2) of Act. In this view of matter, we are of opinion that view taken by Tribunal is correct and both questions are answered against Revenue and in favour of assessee." 15. From above facts and circumstances of case, it is seen that assessment order was passed on dead person. One of legal heirs has informed AO during pendency of assessment proceedings that assessee has expired on 11 th Nov., 2004. Before AO, complete details like assessee has expired on 11 th Nov., 2004. Before AO, complete details like legal heir certificate and xerox copy of death certificate were filed. Now, as principle laid down and exception provided by Hon ble apex Court in case of Mrs. Suseela Sadanandan (supra), first exception is that : "If it had been established that E.D. Sadanandan had alone been managing entire estate, Court could have come to conclusion that he was legal representative of deceased and, therefore, represented estate in assessment proceedings." Further, Hon ble apex Court has laid down exception as under : "Though notices served only on one of executors, proceedings might show that estate was properly represented by E.D. Sadanandan with consent, express or implied, of other executors and heirs." Further, principle laid down is that cases in which situation may arise is where ITO bona fide and diligently believes one or more persons to be only legal representatives of deceased and initiates proceedings by serving notice on them and subsequently it is found that, besides those served, there were also other legal representatives of deceased. Then there is no reason why in such cases general rule evolved in field of civil law should not be applied. 16 . No doubt, Hon ble apex Court has laid down general rule of application but this cannot be applied blindly in income-tax proceedings. If principle laid down by Hon ble apex Court is applied to assessment proceedings, it would frustrate proceedings for assessment of income of deceased person and will result in escapement of income in hands of legal heirs of deceased person. In present case, facts are very clear and it does not fall within any of exceptions and general rule will apply. There is nothing to show that Sri Ravi Prabhakar who participated in assessment proceedings to some extent, was in management of entire estate of deceased, Shri A.Y. Prabhakar. There is nothing on record to show that AO made attempt to make diligent and bona fide inquiry to find out who legal representatives of deceased assessee are and to serve notice on all those who are legal representatives. Here, that is not case. One of legal representatives, at time of continuation of assessment proceedings, informed death of assessee, Shri A.Y. Prabhakar, that he has expired on 11 th Nov., 2004 and filed xerox copy of death certificate and legal heir certificate also before AO. But AO has not taken any step to implead these legal heirs and passed assessment order on deceased. learned Departmental Representative argued that even if service of notice to one of legal representatives, Shri Ravi Prabhakar who participated in assessment proceedings alone is sufficient to bind estate of deceased as assessment order can be enforced against other representative who was not served notice. argument of learned Departmental Representative was that one of legal representatives has participated in assessment proceedings and there was complete representation of estate of deceased. Here, we cannot agree with contention of learned Departmental Representative. learned Departmental Representative overlooked basic principle that in order to assess income of deceased person assessment must be made on all those who represent his interest or estate wholly and completely and there must be complete representation of estate of deceased in proceedings. Otherwise, position would be as if deceased is not before ITO and obviously no assessment of income of person can be made in his absence. In present case, Shri Ravi Prabhakar, one of legal representatives does not represent deceased as both legal representatives together represented him and therefore, they must all be before AO in order to enable him to make valid assessment on income of deceased. assessment which is made on income of deceased cannot be valid as against one legal representative and invalid as against another. Once assessment is made in compliance with requirement of s. 1 59 of Act, it is valid assessment and amount of tax assessed can be recovered from all legal representatives as provided in s. 1 59(2) of Act as claimed by learned Departmental Representative. Then this would lead to highly anomalous situation that assessment of income of deceased person made on participation of one of legal representatives of deceased person would be enforceable against another legal representative though he is not impleaded and had no opportunity of contesting assessment proceedings, legislature surely have not intended to bring about such extraordinary result. As per provisions of s. 1 59(2)(a) of Act that any proceedings commenced before death of deceased may be continued thereafter against legal representative and any proceedings which could have been taken against deceased, if he had survived, may be taken against legal representatives. Therefore, AO is duty-bound to bring on record all legal representatives and pass order on all legal representatives after impleading them. 1 7. term "legal representative" means one who stands in place of and represents interests of another, i.e., one who is entitled to take any descent or distribution. It is person, one on whom status of representative is fastened by reason of death of his ancestor and on death of any person some of rights fall on or accrue to another as successor, and that another is legal representative of former. legal heir who succeeds to estate, purporting to be heir at law, effectively represents estate. Thus, heir or heirs of deceased in possession of estate is of legal representative, whether under definition in CPC or in its popular sense. provisions of s. 1 59(2)(a), and (b) are very clear that legal representative must be impleaded, in case, if proceeding is to be continued and in no way, it gives right to AO to deviate from it except exceptions as provided by Hon ble apex Court in case of Mrs. Suseela Sadanandan (supra). In provisions of s. 1 59(2)(a) of Act, words are very clear where it states that any proceeding taken against deceased before his death shall be deemed to have been taken against legal representative and may be continued.........." Here, words shall and may are mandatory and this may and shall will be treated as shall . above words are mandatory or directory will depend on context and this has been explained in V.S. Sundaram s Law of Income-tax in India, 12 th Edn. in 1 st Volume at p. 22 and same is reproduced as it is : "Crawford on Statutory Construction and Interpretation of Laws stated : Mandatory and directory are permissive words. Ordinarily, words shall and must are mandatory, and word may is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for Courts to resort to construction in order to discover real intention of legislature. Nevertheless, it will always be presumed by Court that legislature intended to use words in their usual and natural meaning. If such meaning, however, leads to absurdity, or great convenience or for some other reason is clearly contrary to obvious intention of legislature, then words which ordinarily are mandatory in their nature will be construed as directory or vice versa. In other words, if language of statute, considered as whole and with due regard to its nature and object, reveals that legislature intended words, shall and must to be directory, they should be given that meaning. Similarly, under same circumstances, word may should be given mandatory meaning, especially where statute concerns rights and interest of public, or where third persons have claim de jure that power shall be exercised or whenever something is directed to be done for sake of justice or public good, or is necessary to sustain statute s constitutionality ........ While words shall , and may are ones generally involved in determining whether statute is mandatory or merely permissive, there are other words and expressions which create same problem, and to which same principles are equally applicable ." 1 8 . intention of provisions of s. 1 59(2) is very clear that assessment proceedings can continue against legal representative but here, legal representative means plurality of legal representatives. If there are more than one legal representative of deceased person, all must be impleaded to make representation of estate complete. In present case in hand, there are two legal heirs and AO made assessment on dead person. Even, present case does not fall in any of exceptions as held by Hon ble Supreme Court in case of Mrs. Suseela Sadanandan. It is fact that Sri Ravi Prabhakar appeared before AO on few occasions but he was never impleaded and contested proceedings. Even otherwise, we presume that he participated in proceedings, then, it does not follow that he did so with consent either expressed or implied of his brother, who is other so with consent either expressed or implied of his brother, who is other legal representative. There is nothing on record and even before us, learned Departmental Representative could not adduce any evidence to show that other legal representative has consented with first legal representative impliedly or expressly. Even decision of Hon ble apex Court in case of Addl. ITO vs. E. Alfred ( 1 962) 44 ITR 442 (SC) cited by learned Departmental Representative, is distinguished by decision of Hon ble apex Court in case of Mrs. Suseela Sadanandan cited above wherein it has held that there was no question before Supreme Court whether service of notice on one of legal representatives, was sufficient for valid proceedings. In view of above facts of case, case law cited above and provisions of s. 1 59(2) of Act, reassessment framed on deceased person is void ab initio. 1 8. 1 Since main issue is decided in favour of assessee, it is not required to deliberate other legal issues on merits. Accordingly, all these six appeals are allowed. 1 9 . first and second issue in appeals of assessee, Sri A.Y. Prabhkar (HUF) in ITA Nos. 2380 and 238 1 /Mad/2005, is as regards to reopening of assessment is bad in law and reasons recorded for reopening were not communicated to assessee. 20. We have heard both sides and gone through case records. It is fact that assessee, HUF is regular income-tax assessee and returns for asst. yrs. 1 997-98 and 1 998-99 were filed and same were processed under s. 1 43( 1 ) of Act. Subsequently, AO discovered that assessee-HUF has taken loan of Rs. 9 lakhs from Indian Bank for construction of property and assessee could not repay principal as well as interest on such capital of Rs. 9 lakhs. assessee claimed interest on capital as well as interest on unpaid interest against income from house property and same was allowed by AO while processing return under s. 1 43( 1 ) or 1 43( 1 )(a) as case may be. AO noticed from records that excess relief has been allowed to Assessee on account of interest on unpaid interest and, therefore, he issued notices under s. 1 48 of Act in view of provisions of s. 1 47 of Act. Accordingly, AO reopened assessments for both years on reasons to believe that income chargeable to tax had escaped assessment for asst. yrs. 1 997-98 and 1 998-99 by issuing notices under s. 1 48 of Act on 1 8th Dec., 2003. AO framed reassessments on account of interest on unpaid interest claimed by assessee as deduction against income from house property and additions were made. Aggrieved, assessee preferred appeal before CIT(A), who confirmed action of AO. Aggrieved by order of CIT(A), assessee came in second appeal before Tribunal. 2 1 . From above, facts are very clear and issue for adjudication is as to whether AO can reopen assessment particularly when assessment was not framed under s. 1 43(3) of Act and return was merely processed under ss. 1 43( 1 )(a) and 1 43( 1 ) of Act as case may be for these two assessment years or not. learned Departmental Representative, first of all, relied on decision of Hon ble Allahabad High Court in case of Pradeep Kumar Har Saran Lal vs. AO ( 1 997) 1 4 1 CTR (All) 37 : ( 1 998) 229 ITR 46 (All) wherein it has held as under : "In case at hand, AO proceeded on wrong footing by making adjustment not permissible by proviso to s. 1 43( 1 )(a). He might have proceeded under s. 1 43(2) as well to bring profits of petitioner to tax by making regular assessment under s. 1 3(3), but failure on his part in doing so before processing of return was completed under s. 1 43( 1 )(a) will not take away jurisdiction of AO to proceed under s. 1 47, if AO is able to establish requisite conditions of s. 1 47. For these reasons, second submission is rejected." Further, he relied on decision of Hon ble Delhi High Court in case of MTNL vs. Chairman, CBDT (2000) 1 62 CTR (Del) 554 : (2000) 246 ITR 1 73 (Del) to support his view. Hon ble High Court has held as follows : "Sec. 1 47 authorizes and permits AO to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. word reason in phrase reason to believe would mean cause or justification. If AO has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that income has escaped assessment. expression cannot be read to mean that AO should have finally ascertained fact by legal evidence or conclusion. function of AO is to administer statute with solicitude for public exchequer with in-built idea of fairness to taxpayers. As observed by apex Court in Central Provinces Manganese Ore Co. Ltd. vs. ITO ( 1 99 1 ) 98 CTR (SC) 1 6 1 : ( 1 99 1 ) 1 9 1 ITR 662 (SC), for initiation of action under s. 1 47(a) (as provision stood at relevant time) fulfillment of two requisite conditions in that regard is essential. At that stage, final outcome of proceeding is not relevant. In other words, at initiation stage, what is required is reason to believe , but not established fact of escapement of income. At stage of issue of notice, only question is whether there was relevant material on which reasonable person could have formed requisite belief. Whether materials would conclusively prove escapement is not concern at that stage. This is so because formation of belief by AO is within realm of subjective satisfaction [see ITO vs. Selected Dalurband Coal Co. (P) Ltd. ( 1 996) 1 32 CTR (SC) 1 62 : ( 1 996) 2 1 7 ITR 596 (SC); Raymond Woollen Mills Ltd. vs. ITO ( 1 999) 1 52 CTR (SC) 4 1 8 : ( 1 999) 236 ITR 34 (SC)]. scope and effect of s. 1 47 as substituted w.e.f. 1 st April, 1 989, as also ss. 1 48 to 1 52 are substantially different from provisions as they stood prior to such substitution. Under old provisions of s. 1 47, separate cls. (a) and (b) laid down circumstances under which income escaping assessment for past assessment years could be assessed or reassessed. To confer jurisdiction under s. 1 47(a) two conditions were required to be satisfied, firstly, AO must have reason to believe that income, profits or gains chargeable to income-tax have escaped assessment, and, secondly, he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on part of assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions are conditions precedent to be satisfied before AO could have jurisdiction to issue notice under s. 1 48 r/w s. 1 47(a). But under substituted s. 1 47, existence of only first condition suffices. In other words, if AO for whatever reason has reason to believe that income has escaped assessment, it confers jurisdiction to reopen assessment. It is, however, to be noted that both conditions must be fulfilled, if case falls within ambit of proviso to s. 1 47. case at hand is covered by main provision and not proviso." He also relied on decision of Hon ble Gujarat High Court in case of Bharat V. Patel vs. Union of India & Ors. (2004) 1 86 CTR (Guj) 639 : (2004) 268 ITR 11 6 (Guj) wherein it has held that : "Thus, in liberalized and simplified tax collection regime, mere acceptance and acknowledgement of return and issuance of refund cannot be elevated to status of regular assessment and formation of opinion about incidence of tax on particular claim or item mentioned in return of income. And in absence of any formation of opinion about taxability of non- compete fees, in facts of present case, there can be no question of change of opinion. On other hand, deeming fiction provided by Expln. 2 to s. 1 47 of Act imparts added obligation in matter of believing even where assessment is made, but income chargeable to tax has been underassessed, it has to be deemed that such income has escaped assessment, and after noticing that income chargeable to tax was underassessed and applying deeming fiction and ratio of aforesaid judgment in Praful Chunilal Patel vs. M.J. Makwana, Asstt. CIT ( 1 998) 1 48 CTR (Guj) 62 : ( 1 999) 236 ITR 832 (Guj), AO can hardly have reason not to believe that any income chargeable to tax has escaped assessment. It is, however, clarified that legality of impugned notice under s. 1 48 of Act and very assumption of jurisdiction under s. 1 47 only being under challenge in this case, it is neither within scope nor issue in this judgment to pronounce upon questions whether non-compete fees received by petitioner was capital receipt or revenue receipt and whether, in fact, there was escapement of income chargeable to tax. These issues are, therefore, left open for decision in accordance with law." 22. In view of case law cited above, we are of view that reopening after processing of return under s. 1 43( 1 ) of Act is permissible on fulfillment of other conditions as prescribed under s. 1 47 of Act. Accordingly, we uphold reopening as there is no change of opinion and not at all any opinion formed by AO at time of processing of return. In view of this, we confirm orders of lower authorities and assessee fails on this issue for both assessment years. 2 3 . As regards to communication recorded, learned counsel of assessee fairly conceded that he cannot state with surety as to whether reasons were supplied or not. On enquiry from Bench, he refused to submit affidavit to this effect. In view of this fact, we feel that reasons were supplied as stated by Departmental Representative. Hence, assessee has no grievance on this issue and same is dismissed. 24. next issue which is common in both above appeals is that CIT(A) failed to appreciate that income has been treated as having escaped in hands of more than one assessee. At outset, learned counsel of assessee submitted that he is not pressing this issue. Hence, this issue is dismissed as not pressed. 25. next common issue in both these appeals is that CIT(A) failed to consider fact that AO had failed to bring on record other adult members of HUF in completing assessment though Karta of HUF had died before completion of assessment and where AO had been informed of same. This issue is also not pressed by learned Counsel of assessee. Hence, this issue is dismissed as not pressed. 26. first legal issue raised in ITA No. 2384/Mad/2005 for asst. yr. 2002-03 is as regards to non-fulfillment of statutory requirements under s. 1 43 of Act while completing assessment. 27. We have heard both sides and gone through case records. learned counsel of assessee could not adduce anything at time of hearing and he has not mentioned as to what type of statutory requirements were not completed while completing assessment under s. 1 43 of Act. main argument of learned counsel of assessee is that no notice under s. 1 43(2) of Act was issued. On query from Bench whether assessee can file affidavit to this effect so that records of Revenue can be summoned, but learned counsel for assessee declined to file affidavit to this effect. He specifically stated that as per their knowledge no notice under s. 1 43(2) of Act was issued. Here, there is no question of knowledge or conjecture or surmises. real fact brought out by learned Departmental Representative is that notice under s. 1 43(2) of Act was issued and statutory requirements under s. 1 43(2) of Act were fulfilled by assessing authority. Accordingly, assessee has no case on this issue. Accordingly, we dismiss this issue. 28. next common issue in all these three appeals is as regards to merits of case which reads as under : "For that CIT(A) failed to appreciate fact that interest claimed is actual interest due to bank towards amount taken for construction and development of property." 29. We have heard both sides and gone through facts of case. facts of case are that assessee has taken loan of Rs. 9 lakhs from Indian Bank for construction of house property. assessee could not repay principal as well as interest on this capital of Rs.9 lakhs. assessee while filing returns of income for all these three years, claimed interest on capital as well as interest on unpaid interest as deduction against income from house property. AO disallowed claim and added to returned income to extent of interest on unpaid interest on such capital amount of Rs. 9 lakhs. learned counsel of assessee relied on case law of Hon ble apex Court in case of Shew Kissen Bhatter vs. CIT 1 973 CTR (SC) 293 : ( 1 973) 89 ITR 6 1 (SC) and argued that interest on interest was allowable in view of principle laid down by Hon ble apex Court in this case. On other hand, learned Departmental Representative also relied on above decision and argued that it is clear from principle laid down by Hon ble apex Court that interest on unpaid interest cannot be allowed in view of provisions of s. 24 of Act where deduction is to be allowed on income from house property. Hon ble apex Court has observed as under : "The question is whether assessee is entitled to deduct compound interest payable by him in accordance with terms of contract referred to earlier or whether he is only entitled to deduct simple interest at rate of 6-3/4 per cent per annum. It must be borne in mind that what law permits is deduction of amount of any interest on such mortgage or charge . interest payable by assessee on capital charge was at rate of 6-3/4 per cent per annum. But if he fails to pay that in accordance with terms of contract, he was liable to pay compound interest. In other words, if he fails to pay interest in accordance with contract, he was liable to pay interest on interest. Or, to put it differently, when interest payable is not paid, same became part of principal and, thereafter, interest has to be paid not only on original principal but also on that part of interest which had become part of principal. It cannot be said that interest which became part of principal can be considered as capital charge. What assessee is entitled to deduct is interest payable by him on capital charge and not additional interest which because of his failure to pay interest on due date had been considered as part of loan. In fact, real capital charge is that which was originally due. other portion is merely interest on which assessee has agreed to pay interest. Hence we are unable to accept contention of assessee that interest paid on interest is interest paid on capital charge. Mr. Chagla, learned counsel for assessee, contended that law permits his client to deduct any interest paid by him on capital borrowed or charged and any interest included compound interest also. This, to our minds, appears to be fallacious argument. compound interest is payable not on capital charge but on that part of interest on which he has agreed to pay interest. That is not capital taken note of by s. 9( 1 )(v). If we accept Mr. Chagla s contention as correct, then door will be open for evasion of tax. All that debtor need do is not to pay interest regularly but utilize that amount for other purposes and make Revenue pay compound interest payable by him and thus derive advantage out of his own omission. Such interpretation is impermissible." It is seen from above case law of Hon ble apex Court that principle laid down is that in case of capital charge, compound interest is not permissible. Here, in present case in hand, assessee is claiming deduction on account of interest on unpaid interest to bank on original capital. In view of this, on merits, assessee has no case. 30. Alternatively, assessee s counsel submitted that no opportunity of being heard was allowed after death of late Sri A.Y. Prabhakar, who was Karta of HUF. No doubt, Shri Ravi Prabhakar, Karta was substituted in place of late Sri A.Y. Prabhkar but he was not familiar with facts of case. Hence, assessment was framed within last two months without giving opportunity of being heard. Further, learned counsel of assessee argued that assessee is unable to place all facts and he was not aware whether actual interest on unpaid interest is disallowed or entire interest is disallowed. For this he requested Bench to set aside this issue to file of AO for verification and also for limited purposes. In view of this, we have no hesitation in setting aside issue to AO to verify this issue. We accept alternative plea of assessee and remit this issue back to file of AO to examine and verify this issue and accordingly, disallow correct amount of interest on unpaid interest and not entire interest paid on capital. AO shall give reasonable opportunity of being heard to assessee. 30. 1 . In result, all these three appeals are partly allowed for statistical purposes. 3 1 . only issue raised in Revenue s appeal in ITA No. 20 1 /Mad/2006 is that CIT(A) has erred in directing AO to assess 1 /3rd share of rental income from estate of late Smt. Kanthi Prabhakar and from estate of Late Smt. Padmavathy Ammal on substantive basis. 32. We have heard both sides and gone through facts of case. facts are narrated in detail at para 6 of order of CIT(A) which reads as under : "6. appellant has been showing 1 /3 share of rental income received from properties which originally belonged to late Smt. Kanthi Prabhakar (wife o f Sri A.Y. Prabhakar) and late Smt. Padhmavathi Ammal (cousin of Sri A.Y. Prabhakar). Smt. Kanthi Prabhakar made Will on 3 1 st Dec., 1 986 vide which all her movable and immovable properties devolved equally on her two sons namely, Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar. She expired on 1 5th Dec., 1 990. Similarly, Smt. Padmavathi Ammal wife of late Sri K. Ramalingam made Will on 27th Oct., 1 993 willing all her movable and immovable properties to her cousin Sri A.Y. Prabhakar and his two sons namely Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar equally. She died on 1 8th April, 1 994. Her husband predeceased her and she did not have any children. Sri Prabhakar was appointed as sole executor of both Wills. However, these Wills were never probated. Therefore, both these ladies are to be treated as having died intestate. Accordingly, their properties were distributed as per relevant provisions of Hindu Succession Act, 1 956. According to these provisions, Sri A.Y. Prabhakar, Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar being only persons to succeed to properties are bound to divide properties equally among themselves. Sri A.Y. Prabhakar, Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar have been showing 1 /3 share of rental income from properties which originally belonged to Smt. Kanthi Prabhakar and Smt. Padmavathi Ammal. AO, however, has assessed 1 /3 share of appellant, Sri A.Y. Prabhakar on protective basis because according to him Sri A.Y. Prabhakar was not entitled to any share of rental income from properties belonging to both ladies mentioned above. Besides this, I find that AO has reopened assessments of estate of (late) Smt. Kanthi Prabhakar and estate of (late) Smt. Padmavathi Ammal for asst yrs. 1 996-97 and 1 997-98. In my order of even date in ITA Nos. 1 33/2004- 05 and 1 34/2004-05 dt. 28th Sept., 2005, I have held that no assessment can be made on estates of both these ladies. Since estate of both Smt. Kanthi Prabhakar and Smt. Padmavathi Ammal has been distributed among legal heirs/beneficiaries, only these legal heirs/beneficiaries are entitled to income therefrom. I, therefore, direct AO to assess 1 /3 share from rental income arising out of house properties which were originally belonging to Smt. Kanthi Prabhakar and Smt. Padmavathi Ammal substantively in hands of appellant and not on protective basis. With this, objection of appellant that same income is stated to have escaped in hands of more than one person is also met. This income is now to be assessed at only one place, i.e., 1 /3rd each in hands of Sri A.Y. Prabhakar, Sri Raghunandan Prabhakar and Sri Ravindran Prabhakar." In view of above facts, learned Departmental Representative fairly relied on order of AO and grounds of appeal raised before us. It is seen from above facts that CIT(A) has rightly directed AO to assess 1 /3rd share from rental income arising out of house property which were originally belonging to late Smt. Kanthi Prabhakar and late Smt. Padmavathy Ammal substantively in hands of assessee and not on protective basis. CIT(A) has rightly held that this income is to be assessed at only one place, i.e., 1 /3rd each in hands of Sri A.Y. Prabhakar, Shri Raghunandan Prabhakar and Sri Ravindran Prabhakar. Accordingly, we uphold order of CIT(A) on this issue. Accordingly, Revenue s appeal is dismissed. 33. In result, ITA Nos. 2458 to 2463/Mad/2006 are allowed, ITA Nos. 2380, 238 1 and 2384/Mad/2005 are partly allowed for statistical purposes and ITA No. 20 1 /Mad/2006 is dismissed. *** LATE A.Y. PRABHAKAR (INDL.) v. ASSISTANT COMMISSIONER OF INCOME TAX