ASIT KUMAR GHOSH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE question referred in this case might well have been a larger and a more difficult one, but all that it comprises and all that really arises out of the order of the Tribunal is a very slender point. THE answer to that point, to my mind, is plain.

(2.) THE facts are these. THE assessee is the adopted son of one Akshoy Kumar Ghosh who died in 1931, leaving a large estate, a widow and a will. By the will he directed certain payments to be made out of the income of his properties and bequeathed the residue of the estate to his natural son or sons, if any were alive at his death, or, in the absence of such son or sons to the son who might be adopted by his widow for which he gave her the requisite authority. Three persons were appointed executors who were directed to pay the legacies as also to hold and administer the estate, in case there was an adopted son, till that son attained the age of twenty years. In pursuance of the authority given to her by the will, the widow adopted the assessee shortly before her death, which took place in 1933. Of the three executors two accepted the office, took out probate and remained in possession and management of the estate till the year 1948. In that year the assessee was appointed receiver, in a suit brought by him against the executors, by an order made on 12th Aug. 1948, and he was put in possession of the estate on 23rd August following. THE order was an order passed by the Court on its original side. It is important to remember that at the time the assessee was appointed receiver, the administration of the estate by the executors had not been completed.

(3.) ON behalf of the CIT it was conceded by Mr. Meyer that in view of the form in which the question had been framed, it was not open to him to argue in this reference that the assessment made on the present assessee was valid in law, quite apart from the effect of the substitution at his own request. Accordingly, he submitted that the utmost which he would say was that the assessee who had misled the ITO into making an assessment on him, could not be allowed to turn round and repudiate his liability to assessment and further, that the effect of the order of the High Court was to make the assessee the proper person to be brought on the record and assessed. I am unable to accept either of those contentions as sound.