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TMI Blog1966 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment year 1956-57. This income represented the fee which he received as Government Pleader for conducting civil and criminal cases in the High Court of Bombay. The Income-tax Officer made an order of assessment treating the income as an income from other sources to which section 12 of the Indian Income-tax Act, 1922, refers. Mr. N.A. Mandagi, who produced the return, appealed to the Appellate Assistant Commissioner and contended that the assessment was illegal since not all the legal representatives of his deceased father had been brought on record and since there was no compliance with the provisions of section 24B. He challenged the correctness of the view taken by the Income-tax Officer that the income was an income from ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 24B without in the first instance having served a notice under section 22(2) as required by section 24B(2). Now, the Appellate Tribunal was of the view that, since the notice to which section 24B(2) refers should have been served on all the legal representatives of the deceased and there was no such service, the fact that only one of those legal representatives produced a voluntary return before the Income-tax Officer did not clothe the Income-tax Officer with the power to proceed to make an assessment on the basis of that voluntary return. The real question before us is whether the order of assessment made by the Income-tax Officer without having served the notices required by section 24B(2) on all the legal representatives is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on sections 3 and 4 of the Act which are the charging sections and that section 22 and the other sections are the machinery sections to determine the amount of the tax. Kania J., as he then was, observed : " The income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is not, however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessees to pay the tax. It may be urged that the issue and service of a notice under section 22(1) or (2) may affect the liability under the penal clauses which provide for failure to act as required by the notice. The jurisdiction to assess and the liability to pay the tax, however, are not conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice would be a vain and empty formality, the omission to do which cannot divest the Income-tax Officer of his competence to make the assessment since the stage which could be reached by the issue of the notice had already been reached by another process. But the Appellate Tribunal thought that the Income-tax Officer could not dispense with the notice under section 24B(2), since the person who produced the return was only one of the five legal representatives, there being three other sons of Mr. A. A. Mandagi, and his widow, who did not join in the production of the return. It is obvious that the Tribunal was of the view that, before the Income-tax Officer could make an assessment, there was a duty which section 24B(2) imposed upon him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 24B. In E. Alfred v. First Additional Income-tax Officer, Salem, the High Court of Madras expressed the view that in the case of an assessment under section 34 of the Income-tax Act, with respect to the income of an assessee who died before the notice is served on him, all the legal representatives of the deceased should be impleaded as parties to the reassessment proceedings. This, according to the learned judges, was the clear meaning of section 24B(2) of the Income-tax Act. With this enunciation, we respectfully agree. It is true that Mr. N. A. Mandagi produced a return after the death of his father. But that return was not produced on behalf of the estate which he alone could not represent. It may be that in a proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Appellate Tribunal asks us to decide the question whether the service of notice prescribed by section 24B(2) is a condition precedent to the commencement of the proceedings for the assessment of the estate of the deceased. The Tribunal thought that such service was a condition precedent for the exercise of such jurisdiction. We are not willing to subscribe to any such broad statement of the law, since in a case where all the legal representatives produce a return, even without having been served with a notice required by section 24B(2), the service of such notice would be unnecessary. We are concerned in this case only with the question whether, after the production of the return by one of the legal representatives, it was possible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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