9911796707
TMI Blog1972 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... dated February 15, 1962. The petitioners paid that amount on March 27, 1962, though on certain points the petitioners filed an appeal, which was dismissed by the Appellate Assistant Commissioner by his order dated June 2, 1962. The Income-tax Appellate Tribunal, in further appeal, by its appellate order dated January 20, 1964, reduced the liability, from the above sum to Rs.1,30,485.40. In the case of Jamnadas v. Commissioner of Wealth-tax, the executors of the estate of one Sodradevi N. Daga contended before a Division Bench of this court that there was no provision in the Wealth-tax Act, 1957, entitling the revenue to charge wealth-tax in respect of the wealth of a deceased person from after the financial year next to the financial year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Navinchandra Mafatlal, having died on August 31, 1955, the petitioners, as executors of the estate, left by Navinchandra, were not liable to pay any wealth-tax for the assessment year 1961-62. Having regard to the law pronounced in the case of Jamnadas v. Commissioner of Wealth-tax there was no provision in the Wealth-tax Act to initiate any proceedings to assess wealth-tax in respect of the estate left by Navinchandra and remaining in possession of the executors of his will during the assessment year 1961-62. The petitioners' case is that, in pursuance of the assessment order dated January 16, 1962, and the notice of demand dated February 15, 1962, the petitioners paid Rs. 1,43,683.88 under misapprehension and mistake that there was prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedies open to the assessee, including that for claiming refund. The relief for refund of tax claimed in the petition was accordingly misconceived. It is further contended that in writ jurisdiction under article 226 of the Constitution of India relief for refund of taxes recovered cannot be given, that the petitioners' application is after gross delay and laches and that for that reason also the petition should be dismissed. The allegation that the petitioners came to know about the alleged mistake in the middle of 1965 through the petitioners' chartered accountant was also denied. At the hearing of this petition, the contention on behalf of the petitioners that there was no provision in the Wealth-tax Act for assessing the estate left by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason not to accept the petitioners' submission that the true position regarding the liability of the estate of the deceased and his legal representatives to wealth-tax in respect of the estate left by the deceased as declared in the case of Jamnadas v. Commissioner of Wealth-tax came to be known for the first time to the petitioners when the report of the decision in that case was conveyed to the petitioners by their chartered accountant. In no event the petitioners could have come to realise the above mistake of law before the declaration of law that was made in this connection in the case of Jamnadas v. Commissioner of Wealth-tax. The judgment in the case of Jammadas v. Commissioner of Wealth-tax was delivered on November 13, 1964. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council referred to the fact that until the decision of the High Court was set aside by the Privy Council the law was as declared by the High Court and observed: " If this Board had otherwise decided the appeal which came before it in 1939, they would have stood unquestionable and unquestioned. It does not appear to their Lordships that they were a 'nullity' in any other sense than that if they had been challenged in due time they might have been set aside ...... They would repeat that they do not find in it any justification for the view that an assessment which may ultimately be held to be invalid in that it does not give effect to the provision for exemption, is thereby rendered a " nullity '. " Mr. Joshi relied upon the above observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. The impugned assessment order and the two appellate orders were accordingly made when the law did not provide for levying assessment and the authorities suffered from want of jurisdiction altogether. These orders must accordingly be held to be " nullity ". Now it is well-established that the orders which are a nullity need not be set aside and quashed. In the cases of State of Kerala v. Aluminium Industries Ltd. and Gill and Co. Private Ltd. v. Commercial Tax Officer, the Supreme Court held that the claim for refund could be made in writ jurisdiction subject to the same restriction and also to the bar of limitation under article 96 of the Limitation Act, 1908, namely, 3 years from the date when the mistake becomes known to the person ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
