SHEIK ABDUL SATTAR Vs. DISTRICT COLLECTOR MASULIPATAM

JUDGEMENT

(1.) THIS is a petition under article 226 of the Constitution for issuing a writ of mandamus, directing the respondents Nos. 1 and 2 to forebear from the certificate proceedings in pursuance of an assessment order made by the second respondent dated July 31, 1957.

(2.) THE petitioner is the widow of one late Sheik Abdul Sattar,. who died on November 16, 1949, leaving behind him. in addition to the petitioner (his widow), three sons and two daughters. For the accounting year 1949-50 an assessment was made in the year 1950-51 on the income of the deceased Abdul Sattar Saheb. THE petitioner contended before the Income-tax Officer that after the death of Sattar Saheb, by a deed of partnership dated November 21, 1949, a partnership firm was constituted and that the firm ought to have been registered under section 26A of the Indian Income-tax Act. THE Income-tax Officer rejected the claim for registration and made an assessment against the petitioner and other on the footing of association of persons. On appeal, the Appellate Assistant Commissioner also took the same view. But, when the matter went up in the appeal before the Income-tax Appellate Tribunal, it was held that the formation of the p nership was true and that the period of liability for assessment should be split up into periods (1) From April 1, 1949, to November 16, 1949, on Abdul Sattar as an individual and (2) on the registered firm from November 16, 1949, to March 31, 1950. Pursuant to the direction of the Income-tax Appellate Tribunal, the Income-tax Officer passed an order of assessment under 23(3) read with section 33 of the Income-tax Act on his (the deceaseds) legal representative, the present petitioner, on July 31, 1957, determining a tax of Rs. 8,491.63 nP. and a notice of demand under section 29 was also issued. THE petitioner did not pay the amount of tax and so a certificate under section 46(2) of the Income-tax Act was issued by the second respondent on November 7, 1957. THE assessee would appear to be in arrears of tax for the year 1951-52, and a penalty was also imposed on her and with respect thereto certificates under section 46(2) were issued on March 30, 1956, and April 18, 1954. Under the certificates issued by the second respondents, the first respondent has attached the properties of the petitioner.

(3.) THE second contention is that though under the terms of section 24B (2) an assessment could be made on the total income of the deceased person against the legal representative of the deceased, still no certificate under section 46(2) can be granted against such legal representative, In support of this connection, the learned counsel for the petitioner placed strong reliance on the judgment of the Madras High Court in T. M. K. Abdul Kassim V. First Additional Income-Tax Officer, Karaikudi, 1958 33 ITR 466 where the learned judges held that the legal fiction created under section 24B(2) of the Indian Income-tax Act of treating a legal representative as the assessee is only for the limited purpose of the assessment and does not extend to the recovery or collection of tax, and that neither section 29 nor section 46(2), either in express terms or by necessary intendment, imposes an additional burden on the legal representative than is imposed by section 24B(2). It was held in that case that the issue of a notice under section 46(2) postulates an arrear of tax payable by an assessee and that the legal representative is not an assessee either within the meaning of section 45 or section 46(2) of the Act. In that judgment, the learned judges referred to and extended the scope of the principle enunciated by them in their earlier decision in Alfred V. Additional Income-Tax Officer, 1956 29 ITR 708 I am relived of the need for a detailed consideration of this question with reference to the view expressed by the learned judges of the Madras High Court, because in two decisions of this court a contrary view has been taken. In Rajah Manyam Meenakshamma V. Commissioner Of Income-Tax, 1956 30 ITR 286 a Bench of this court consisting of Chief Justice Subba Rao and Viswanatha Sastri, J., had to consider the scope of section 24B. One of the questions that feel to be decided by the learned judges was, whether a legal representative against whom an assessment had been made under section 24B had a right of appeal under section 33 of the Act. THE assessment in that case was with respect to the assessment year 1947-48, before the definition of the word "assessee" was amended by the Indian Income-tax (Amendment) Act, 1953. Even so, Subha Rao, C.J. held that a combined reading of the provisions, viz., section 2(2) section 24B and section 33, indicates that a legal representatives, who is liable to pay tax from and out of the estate of the deceased person would be an assessee as defined in the Act. In Maddula Appa Rao V. Income-Tax Officer, Eluru, 1959 36 ITR 140 My lord the Chief Justice and Ansari, J., held that a penalty levied under section 28 is recoverable as an arrear of tax. Such arrear of tax falls under section 24B and the legal representatives of the deceased assessee are therefore liable to pay the penalty imposed on the assessee, as indicated in section 24B. Though this relates to the collection of a penalty, in principle there is no distinction between the collection of a tax and a penalty levied under section 28. THE assessment and the levy of penalty in the case the learned judges had to deal with was with respect to the years 1943-44, 1944-45 respectively and the assessment was actually made on 30th March, 1946.