COMMISSIONER OF INCOME TAX Vs. PATEL K R

JUDGEMENT

(1.) THE assessee is the sole surviving executor and trustee of the will of the late Mrs. Bhikhubai Chandulal Jalundhwala. She died on January 8, 1962, leaving an estate valued for the purpose of estate duty at Rs. 24 lakhs and consisting of movable and immovable properties. She left behind her last will executed on January 5, 1962. Under the provisions of the will, the deceased appointed the assessee and one B. G. Amin, Solicitor, now dead, as executors and trustees thereof. She directed the executors and trustees by the will to pay her debts, funeral expenses and estate duty. She directed them to wind up a business that she was then conducting or to sell it as a going concern. She directed them to convert all the movable and immovable properties in her estate, other than those bequeathed specifically, into cash. She listed the specific bequests. Clauses 15, 16 and 20 of the will are most relevant to this proceeding and read thus :

(2.) THE executors and trustees obtained probate of the will on April 5, 1963. They carried out the directions in the will pertaining to specific bequests between August, 1963, and March, 1964.

(3.) THE executors and trustees filed an IT return for the asst. year 1964 -65, the previous year being October 29, 1962, to December 17, 1963, on February 13, 1965. They signed the return in the capacity of executors of the will. Against the order of assessment made by the ITO, the assessee, now the sole surviving executor and trustee, preferred an appeal before the AAC, and specifically raised the contention that the income of the estate was liable to be assessed in his hands in the capacity of a trustee and not in the capacity of an executor. The AAC held that the assessee was liable to be assessed in the capacity of an executor inasmuch as the administration of the estate had not been completed. The assessee appealed to the Tribunal.