SHAH MAHMOOD B Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THIS writ petition is directed against proceedings commenced under the provisions of S. 46(2) of the Indian IT Act, 1922, for the recovery from the petitioner of a sum of money stated to be due by way of income-tax from the estate of one Bademiya who was assessed to income-tax for the asst. yr. 1951-52.

(2.) THE assessment proceedings commenced during the lifetime of Bademiya, who, however, died before the assessment order was made under S. 23(3) of the Indian IT Act, 1922, on 29th March, 1956. Bademiya, it is not disputed, was doing his business under the name and style of Nizamia Oil Mills and he was assessed as an individual. Bademiya left behind him two sons and a daughter. THE assessment order made in respect of his income was appealed against by only one of his two sons who was able to obtain some little relief from the AAC and a little more from the Tribunal. On 29th March, 1956, on the very date on which the assessment order was made by the ITO, a notice of demand was served on that son, Abdul Rahaman, who has preferred this appeal. It is undisputed that neither the other son, Shah Mahmood, who is the petitioner before us nor the daughter, Fathamabi, was served with any such notice of demand under the provisions of S. 29 of the Act. On 9th July, 1956, the ITO forwarded, under the provisions of S. 46(2) of the Act, to the concerned Dy. CIT, a certificate specifying the amount of arrears due from the petitioner and it is in pursuance of this certificate that the impugned recovery proceedings were started treating the amount due by the petitioner as an arrear of land revenue. It appears that during those recovery proceedings the petitioner's share in the properties of his father was attached and that those properties were brought to sale. It was at that stage that this writ petition had been presented to this Court.

(3.) THE question that next arises is whether the petitioner, who is a legal representative of Bademiya and who is, therefore, liable to pay the tax which would have been payable by Bademiya under the Act if he had not died, is an assessee. THE question whether he is such assessee arises by reason of the fact that a certificate under S. 46 (2) of the Act can be forwarded to the Collector by the ITO only if two conditions exist. THE first of them is that the person from whom the amounts may be recovered in pursuance of the certificate should be an assessee. THE second is that there should be an amount of arrears due by him. THE endeavour made on behalf of the petitioner to disclaim the status of an assessee is clearly for the purpose of taking him out of the provisions of S. 46(2) of the Act. An "assessee" is defined by S. 2(2) of the Act and that sub-section reads :