9911796707
TMI Blog1969 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... pilgrimages and for making gifts or otherwise to relations with certain limitations. The testator bequeathed the residue of his estate, both movable and immovable, to his adopted son, Gokul Chand Bangur, absolutely. Up to the assessment year 1963-64, for which the corresponding accounting year was the period 8th November, 1961, to 27th October, 1962, the assessment in respect of the estate of the deceased was made on Gobind Lal Bangur as the executor of the estate of Sri Ram Kumar Bangur, deceased. The said assessment was made on the 30th September, 1967. It is alleged in the petition and not denied in the affidavit-in-opposition that the petitioner, Gobind Lal Bangur, has not yet made over the said sum of Rs. 4 lakhs to the widow of the testator nor has he been able to obtain the probate of the will as the estate duty payable in respect of the estate of the deceased has not yet been paid though such duty had been paid on a provisional assessment on the basis of the return filed. On the 3rd May, 1968, the respondent-Income-tax Officer addressed a letter to the petitioner to be furnished with certain particulars and informations. The letter further states that from the will of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding with the threatened assessment was obtained. In the affidavit-in-opposition affirmed on behalf of the respondent-Income-tax Officer it is stated that the non-completion of the administration of the said estate is due to the dilatory attitude of the petitioner. After various references to the records and the provisions of the Income-tax Act the respondent denied that it was in any way incumbent on him to make separate assessment under section 168 of the Income-tax Act as claimed in the petition or that the decision of the respondent to complete the assessment for the aforesaid years under section 160 of the Act was in any way illegal or void or of no effect. One would have thought that on the averment made, in paragraph 5 of the affidavit-in-opposition that the administration of the estate had not yet been completed due to the dilatory attitude of the petitioner, the intended action of the respondent in making the assessment under section 160 would be entirely without the sanction of law. The difficulty in this matter is whether at this stage the petitioner is entitled to ask the court to interfere. There is no dispute that the respondent Income-tax Officer has juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it would be leviable upon and recoverable from the person represented by him. The material provisions of section 168 are, for the purpose of this application, set out below : " 168. Executors.-Subject as hereinafter provided, the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor,- (a) if there is only one executor, then as if the executor were an individual ; or (b) if there are more executors than one, then, as if the executors were an association of persons ;...... (2) The assessment of an executor under this section shall be made separately from any assessment that may be made on him in respect of his own income. (3) Separate assessment shall be made under this section on the total income of each completed previous year or part thereof as is included in the period from the date of the death to the date of complete distribution to the beneficiaries of the estate according to their several interests....... It would, therefore, appear that unless and until the legacies were paid and the distribution to the beneficiaries was completed, the assessment of the income of the estate of the deceased must be made on the executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated and later by consent of the parties sold under an order of the High Court and Rs. 4 lakhs 15 thousand were realised and kept in the custody of the court. Subsequently, the Collector of Customs called upon the petitioner by notice purported to be under section 167(h) of the Sea Customs Act read with section 3(2) of the Imports and Exports (Control) Act to show cause within seven days why the said sum of Rs. 4 lakhs 15 thousand should not be confiscated and also why penal action should not be taken against the petitioner. The Supreme Court observed : " If on a reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an enquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not cause any prejudice to the petitioner. If any prejudice is caused to the beneficiaries they had not come before this court or have been made party to this application. Mr. Sen also referred to an old decision of this court in In re Keshardeo Chamaria, where it was held that it was for the Income-tax Officer to decide whether an assessee should be taxed as an owner under section 9. There is no dispute that the respondent-Income-tax Officer has not only the jurisdiction to make the assessment in this case but he has also the jurisdiction in the course of such assessment to determine the status of the assessee. But if in making his decision he ignores or acts in contravention of well-established principles of law the order would certainly be amenable to the writ jurisdiction of this court. In the view I have taken, this rule must be discharged and all interim orders must be vacated. Very recently, the Supreme Court has expressed the opinion that in applications under article 226 of the Constitution, the High Court is entitled to give a declaration ; it is not necessary for me to give a declaration in this case, but I would direct the Income-tax Officer to act according to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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