JUDGMENT A.R. Tiwari, J. 1. The applicant has filed this application under Section 256(2) of the Income-tax Act, 1961 (for short, "the Act"), to direct the Tribunal to state the case and refer the undernoted questions of law for the opinion of this court : "(i) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in not considering the fact that the information about execution of will by Smt. Rambhabai during her lifetime, was brought to the notice of the Income-tax Officer, after the assessment was completed ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal is legally correct in holding that the order passed under Section 154 could not make the already invalid order passed to be valid as the facts of the case are quite different ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in not considering that it was a mistake apparent from the record and was liable for rectification under Section 154 as the facts of the will were not brought to the notice of the Income-tax Officer in the course of assessment proceedings and up to the date he completed the assessment ?" 2. On September 23, 1992, this application was admitted for final hearing with the direction to issue notice to the non-applicant on payment of P. F. within seven days. The case was listed in default of payment of P. F. and copies. On October 17, 1995, the applicant was granted ten days time to do the needful with caution that in default, the application shall be liable to be dismissed. 3. Facing the possibility of dismissal of the application in default, counsel prayed that the matter be heard on the merits. We, therefore, heard Shri D.D. Vyas, learned counsel for the Revenue on the merits. 4. The facts in brief are that the deceased, Smt. Rambhabai, filed her income-tax return during her lifetime on May 29, 1975, in her individual status. The assessment was completed on March 23, 1976. This was set aside by the Appellate Assistant Commissioner on January 25, 1979. In compliance with the direction of the Appellate Assistant Commissioner fresh assessment was completed on February 28, 1981. Before completion of the assessment, Smt. Rambhabai died on August 22, 1980. The assessment was completed on March 23, 1976. This was set aside by the Appellate Assistant Commissioner on January 25, 1979. In compliance with the direction of the Appellate Assistant Commissioner fresh assessment was completed on February 28, 1981. Before completion of the assessment, Smt. Rambhabai died on August 22, 1980. The factum of death was communicated to the Income-tax Officer by a letter dated December 15, 1980. The assessment proceedings were continued. The Income-tax Officer examined two sons of the deceased on January 12, 1981. It was revealed through the answer to the questions put to these two sons that Smt, Rambhabai had left a will in favour of Smt. Kamlabai, w/o. Shri Fetehlal (non-applicant), The Income-tax Officer completed the assessment without bringing Smt. Kamlabhai on record as the legal heir of the deceased. No notice was issued to her. The notice was served on the non-applicant who represented that Smt. Kamlabai was required to be noticed. The Income-tax Officer rectified the mistake under Section 154 of the Act to the effect that the proper legal heir of the deceased was Kamlabai. The assessee agitated the order of rectification before the Commissioner of Income-tax (Appeals) who set aside the assessment with the direction to the Income-tax Officer to pass fresh order. The assessee filed the second appeal before the Tribunal on the ground that the assessment should have been annulled instead of being set aside. The appeal was allowed. The Tribunal observed that the invalidity in the order was not liable to be validated under Section 154 of the Act. Aggrieved, the applicant filed the reference application under Section 256(1) of the Act connectable with the order dated September 17, 1987, passed in I. T. A. No. 743/(Ind) of 1984 for the assessment year 1973-74. The application was rejected. The applicant, therefore, filed this reference application. 5. It is not disputed before us that in the event of the death of the assessee, it is the duty of the Income-tax Officer to make proper inquiry to ascertain the legal heirs and serve notices on them before completing the assessment. In the instant case, the Income-tax Officer had come to know about the death as also about the legal heir. Yet, the legal heir was neither noticed nor heard. In the instant case, the Income-tax Officer had come to know about the death as also about the legal heir. Yet, the legal heir was neither noticed nor heard. This invalidity was not liable to be cured by rectification of the name of the legal heir under Section 154 of the Act. The assessment order was, therefore, directed to be annulled. 6. Shri Vyas submitted that in view of the annulment, fresh assessment can be made after notice to the legal heir. 7. In view of the aforesaid position, we are satisfied that the proposed questions of law did not arise out of the order of the Tribunal. 8. We are satisfied with the correctness of the view taken by the Tribunal We are also satisfied that the reference application under Section 256(1) of the Act was rightly rejected. Recourse to Section 256(2) of the Act is, thus, manifestly acarpous. We, therefore, dismiss this reference application, but without any orders as to costs.