9911796707
TMI Blog1980 (9) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the 1st ITO Circle-I, Karur under s. 143(3) of the IT Act 1961 r/w s. 147(b) thereof for the asst. yr. 1976-77 2. The appellant/assessee in ITA No. 778(Mds)1979 and the respondent assessees in ITA Nos. 2167 2168/(Mds)/1979 are hereinafter referred as "the first, second and third assessee" respectively. One Sri K. Periaswamy, who was being assessed in the status of individual upto the asst. yr. 1975-76, died on 28th Aug., 1975 leaving behind his wife Smt. P. Balammal,(the third assessee herein), his mother Smt. K. Meenakshi Ammal(the second assessee) and four daughters(the first assessee herein). He owned a building at Karur along with his brother Ponnuswamy in equal moietys. He was a partner in the firms M/s. Angamuthu Fabrics and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on Smt. P. Balammal and Smt. K. Meenakshi had been originally made without including their shares of the above income. Therefore, the ITO reopened the assessments by his orders dt. 20th March, 1979 he determined the income as Rs. 64,200 in the case of Smt. P. Balammal and Rs. 21,510 in the case of Smt. K. Meenakshi. In so doing he included there in therein their 1/6th share of the above mentioned income. 4. Aggrieved by such assessments, the assessees preferred appeals. The appeal preferred by Smt. P. Dhanalakshmi, was disposed of by the CIT(A), Madurai by his order dt. 20th Dec., 1978. It was urged before him that since Smt. Balammal was administering the state left by the deceased-husband and since the estate had not been partitioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the findings recorded by the CIT(A), Madurai in his order dated 20th Dec., 1978 and the correction of these were not challenged by the Department. There is also no doubt that the properties in question belong to the deceased as separate properties and, therefore, on his death they devolved upon his mother, wife and four daughters, who were his only legal heirs under s. 8 of the Hindu Succession Act, all of them being class-I heirs. It has also been seen that under s. 19(2) of the aforesaid Act they became entitled to these properties as tenants-in-common. It would, therefore, follow that each of them would be entitled to 1/6th of the income. The question for consideration however, is whether in view of the provisions of s. 168 the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrator-General, the Official Trustee or any receiver or manager (including any person, whatever his designation, who in fact manages property on behalf of another) appointed by or under any order of a Court, receives or is entitled to receive, on behalf or for the benefit of any person, such Court of Wards, Administrator-General, Official Trustee, receiver or manager. It is to be noticed that executor is not included in the above enumeration. It is also to be noticed that only such person as is entitled to receive income having been appointed by or under any order of a Court is to be considered as a representative assessee. It will be thus seen that an assessment which is to be made under s. 168 is not an assessment on a representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the intention of the legislature was to include only persons clothed with authority for administering the estate of a deceased for the purpose of s. 168, there was no need for adding the words "other person administering the estate of a deceased person". It is a well established rule of construction that a provision in a statute can not be overruled as to render any portion thereof nugatory or otiose. If the contention urged by the departmental representative is accepted, then the portion, namely "other person administering the estate of a deceased person" occurring in the Expln. to s. 168 will become purposeless. The expression "administrator" occurring therein indicates that a person who has got letters of administration for the admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961 and contended that in any event the income from property in which the deceased had a half share should be assessed in the hands of the heirs. This contention also cannot be accepted. When once it is seen that the assessment has to be made under s. 168, there is no scope for the application of s. 26. This is because under s.168 the assessment is to be made in respect of the income of the estate of a deceased person. There is nothing in that section which provides that such income as is derived from the property comprised in such an estate is to be excluded from the ambit thereof. The estate for the purpose of assessment under s. 168 is to be considered as single estate and, therefore, there is no question of any co-ownership arising a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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