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TMI Blog2007 (4) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been administered and probate application stands rejected by the competent court? 2. Whether the Income-tax Appellate Tribunal was legally correct to hold that the will still holds the field even when the probate was not granted? 3. Whether the Income-tax Appellate Tribunal was legally correct to hold that the provisions of section 213 of the Indian Succession Act were not applicable in proceedings before the income-tax authorities?" The reference relates to the assessment years 1984-85 to 1986-87. Briefly stated, the facts giving rise to the present reference are as follows: The assessee along with his two brothers, namely, Sarvasri P.A.G. Price and J.A.W. Price, was the owner of the building "Royal Hotel", 56-58, The Mall, Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty of the deceased person vested in him in view of section 211 of the Indian Succession Act. It was accordingly claimed that the half share in the property of the hotel and income thereof was assessable in the hands of the executors since there was no administrator appointed by the court. The Assessing Officer rejected the plea and treated the will as invalid on the ground that the application for probate had been rejected by the court. According to the Assessing Officer, the assessee who was the sole surviving brother of Sri J.A.W. Price, was the legal heir and the entire income from the property in question was assessable in his hands. The Deputy Commissioner of Income-tax (Appeals) upheld the order of the Assessing Officer. In appeal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. Nobody has appeared for the respondent-assessee. Learned standing counsel submitted that the respondent-assessee was named the executor in the will left by the deceased and the application for grant of probate has been dismissed for want of steps. According to him, under section 211 of the Indian Succession Act, 1925, the executor of a deceased person is his legal representative for all purposes and all the properties of the deceased person vest in the executor and, therefore, the respondent was rightly assessed in respect of the income of the property left by the deceased. He also invited our attention to the provisions of section 168 of the Act, which provides for assessing the income of the deceased in the hands of the executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether where a probate has not been granted and the application has been rejected on some technical grounds, the respondent would inherit the entire property as a natural heir of the deceased or the estate would go to the person mentioned in the will. In the case of Mrs. Hem Nolini Judah, AIR 1962 SC 1471, the apex court, while considering the provisions of section 213 of the Indian Succession Act, has held that a bar is created to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. In the present case, the respondent is not claiming any right under the will. On the other hand, his case is that he has not inherited any property of the decea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executor were an individual; or (b) if there are more executors than one, then, as if the executors were an association of persons; and for the purposes of this Act, the executor shall be deemed to be resident or non-resident according as the deceased person was a resident or non-resident during the previous year in which his death took place. (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 assessments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been made on the two executors treating them to be an association of persons and not on the individual. Further, we are of the considered opinion that where the application for grant of probate is rejected by a competent court on some technical grounds, such as, for want of steps, the will executed by the deceased does not cease. It is still in existence and, therefore, the respondent-assessee will not inherit the property in his individual capacity as a natural heir, but shall be governed by the provisions of section 211 of the Indian Succession Act and the assessment of income derived from the estate of the deceased is to be made under section 168 of the Act. The questions referred to us are, therefore, answered in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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