MITCHELL Vs. MCNEILL AND CO

JUDGEMENT

(1.) This is an originating summons taken out by the administrator with the Will annexed of the estate of Donald Eraser Mackenzie, deceased, and by the executors of his Will which has been proved in England to determine a question which arises in the administration of his estate. The question is as to the liability of the estate to pay to McNeill & Co., a certain sum of money paid by them in circumstances which I will presently state. In my view the procedure by originating summons is not applicable to a contentious matter of this nature which is really a claim by McNeill & Co., to recover from the estate, the sum in question. The procedure should have been by suit but as ail parties agree to the matter being decided on originating summons I propose to decide it.

(2.) The facts which I take from the plaint are not, I understand, in dispute. Donald Fraser Mackenzie died on the 14 June 1924. At the date of his death he was a partner in the firm of McNeill & Co., but on his death his interest in that firm ceased as from the 31 March 1924. His income from the firm for the financial year 1923-24 was assessed to income-tax and income-tax has been paid on that sum. A return for the purposes of income-tax was made to the revenue authorities by the administrator on the 14 March 1925. On the 20 March 1925 the revenue authorities purported to assess Donald Eraser Mackenzie's estate to super-tax for the year 1924-25. The assessment was made on Donald Fraser Mackenzie's estate, c/o Messrs. McNeill & Co., under Section 29 of the Indian Income Tax Act (XI of 1922), and a notice was issued under the said Act. By Clause 5 of the notice the assessee was informed that an appeal might be presented under Section 30(1) of the said Act within 30 days.

(3.) Details of the assessment were given at the end of the notice and they were described as "details of super-tax assessment for 1924-25."