COMMISSIONER OF INCOME TAX Vs. RAHIMA BI SMT

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal, Bangalore Bench, under section 66(1) of the Indian Income-tax Act, 1922, hereinafter referred to as "the Act", has referred the following question of law for the opinion of this court in relation to the assessment years 1950-51 and 1951-52 :

(2.) THE assessments referred to above relate to the estate of late Gundu Hafiz Mohammed Yousuff of Valathoor. THE said Gundu Hafiz Mohammed Yousuff was deriving share income from three firms and the died on January 21, 1956. For the three assessment years, namely, 1950-51, 1951-52 and 1953-54, assessments were made by issue of notices to Rahima Bi, wife of Gundu Hafiz Mohammed Yousuff, the assessee, treating her as the legal representative of her deceased husband. She filed returns for the assessment years 1950-51 and 1951-52. THE assessments were completed. On February 19, 1959, S. A.Samad, son by another wife of the deceased, stated that Rahima Bi was not the only legal heir and that he and his sister by the first wife of the deceased were also heirs. THE assessment for 1953-54, was completed under section 23(3) of the Act. THEre was an appeal to the Appellate Assistant Commissioner and then to the Tribunal. THE contention taken on behalf of Samad and of Rahima Bi that action under section 24B(2) of the Act was required to be taken was upheld by the Tribunal. THE Income-tax Officer then reopened the assessments for 1950-51 and 1951-52 by issuing notices under section 34 on all the persons who included Rahima Bi, her children and the two children by the first wife. So far as the minors were concerned, the Income-tax Officer issued notices treating Rahima Bi, the mother as their guardian. THE others refused service. No return was filed. Notice under section 22(4) was served on Rahima Bi by affixture on March 16, 1960, posting the case to March 18, 1960. THEre being no response, the assessments were completed for both the years under section 23(4).

(3.) IN this connection, the Tribunal itself has relied on a decision of this court by Srinivasan J. in Ravith Bibi v. Agricultural INcome-tax Officer, 1964 52 ITR 471. That was a case of an assessment of a minor to agricultural income-tax under section 17(4) of the Agricultural INcome-tax Act. IN that case, a guardian had been appointed under the Guardians and Words Act for the minor. However, the notice was not served on the said guardian, but was served on some other person as representing the minor by affixture and there being no return, the assessment was made under section 17(4) of the said Act. The learned judge has held that the Agricultural INcome-tax Officer acted without jurisdiction in so making the assessment under section 17(4) without service of notice on the de jure guardian of the minor assessee. The learned judge pointed out (page 473) :