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TMI Blog1942 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Incometax Act. A copy of the assessment order is appended and marked Annexure A . In the assessment the Income-tax Officer included under the head Salaries a sum of Rs. 18,748 of which Rs. 564 had been drawn by the assessee's husband during his life and the balance, viz., Rs. 18,184 had been paid to the assessee, after her husband's death, by the Bengal River Steam Company Ltd., of which company the late Mr. N. K. Roy Chowdhury had been the Managing Agent. For his services to this company Mr. Chowdhury was not paid a regular salary but earned remuneration on a commission basis at a certain fixed percentage of the total annual value of the business of the company. At the time that Mr. Chowdhury died, viz., 12th May 1938, he had with the company a credit of Rs. 18,184 on account of commission which had been earned by him in previous years and the Income-tax Officer was informed by the Bengal River Service Company that this sum was paid to Mrs. Roy Chowdhury, the administratrix, by way of allowances due but not paid to the late N. K. Roy Chowdhury . The sum was actually paid to the lady in instalments on the following dates : Rs. 3,500 on 30th June 1938. Rs. 2,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed on that basis they are obviously liable to assessment subject to the relief permissible under Section 60(2). In my opinion, the commission due to the deceased for preceding years, which was paid to his administratrix after his death and which was not assessed in the past was salary of the deceased within the meaning of Section 7(1). I therefore set aside the order of the Appellate Assistant Commissioner dated the 11th July 1940 and direct that the sum of Rs. 18,184 be restored to the assessment for 1939-40. 4. Question of Law.- The assessee has now requested me by a petition dated 6th March 1941 (a copy of which is attached and marked Annexure C ) either to grant relief under Section 33-which I do not see my way to do-or, in the alternative, to refer to this Hon'ble Court certain questions of law. The only question of law which can be referred under Section 66(2) is a question arising out of my order of enhancement quoted above and, in my opinion, the question may be concisely formulated as follows : Was the Commissioner correct in law in ordering the inclusion of the sum of Rs. 18,184 in the petitioner's assessment for 1939-40 ? 5. Opinion of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act if he had not died. If Mr. Roy Choudhury had not died he would have been assessed for 1939-40 on the income of the previous year 1938-39. It is admitted that such payments as Mr. Roy Choudhury drew on account of his commission during his life-time were salary within the meaning of Sections 6 and 7 of the Act. In making the assessment the Income-tax Officer has included in the total income of the deceased for the year 1938-39, the total sum due to Mr. Roy Choudhury for commission at the date of his death, namely Rs. 18,748. The Assistant Commissioner to whom an appeal was preferred has come to the conclusion that the Income-tax Officer's assessment is wrong, and that there should only be included in it the commission which was due to Mr. Roy Choudhury at the date of his death in respect of the period from the beginning of the financial year 1938-39 up to the day he died, that is to say, up to May 12, 1938. On an average basis he has come to the conclusion that commission for this period amounted to Rs. 2,668, and he has accordingly disallowed Rs. 18,184 of the Rs. 18,748 appearing in the assessment made by the Income-tax Officer. The Commissioner has set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction appears to me to insert into the section words which are not there and which the Legislature if it had seen fit could have inserted, and thereby made its meaning clear. In my opinion the fact that the salary has been since paid to the legal representative is not really a material circumstance, and that even if it were still unpaid it would nevertheless be taxable although earned by services to the employer in years previous to the year of assessment. It may be that I am wrong in this view and that the arguments by which the Commissioner has been led to come to the opinion he has formed are the correct ones. Be that as it may I arrive at the same result as he does, namely, that the sum of Rs. 18,184 was rightly included in the assessment. The learned Advocate for the assessee attaches some importance to the proviso to Section 7(1) which states Provided further that where tax is deductible at the source under Section 18, the assessee shall not be called upon to pay the tax himself unless he has received the salary without such deduction . If I am right in thinking that the tax was payable by the assessee at the date of his death, obviously Section 18 has no app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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