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TMI Blog1994 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... , is assessable under section 168 of the Act in the hands of the executor ? (2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that in view of the application of section 168, there is no scope for application of section 26 and that the estate for the purpose of assessment under section 168 is to be considered as a single estate without any right of co-ownership ? " One K. Periaswamy, who was being assessed in the status of individual up to the assessment year 1975-76, died on August 28, 1975. His wife, P. Balammal, assessee in R. A. No. 1367/(Mds) of 1980, his mother, Meenakshi, assessee in R. A. No. 1366/(Mds) of 1980 and four daughters, one of whom, P. Dhanalakshmi, assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 19(b) of the Hindu Succession Act. Consequently, each of them was entitled to one-sixth of the income, and since the deceased had died intestate, one-sixth of the income was liable to be assessed in the hands each heir. The daughter of the assessee preferred an appeal before the Commissioner of Income-tax (Appeals). Before the Commissioner (Appeals), the assessee submitted that since Balammal was administering the estate left by the deceased and since the estate had not been partitioned among the heirs of the deceased, the assessment should be made under section 168 of the Income-tax Act. The Commissioner of Income-tax (Appeals) also rejected the contention put forward by the assessee. According to the Commissioner of Income-tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, section 168 has no application. Learned counsel further submitted that according to the Explanation to section 168, the executor must be a person appointed by the court and a person, who, in fact, is administering the estate, is not entitled to claim to be the executor or administrator under section 168 of the Act. Therefore, it is the contention of learned counsel appearing for the Department that unless the executor or the administrator is appointed by the court, in the matter of testamentary succession, assessment cannot be made under section 168 of the Act, in the representative capacity. In the present case, learned counsel pointed out that the succession is only intestate and as soon as the deceased died, the estate would have d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Explanation under section 168 of the Act states that it would be applicable only in the case of a specific legatee. Legatees are entitled to succeed to the estate in accordance with the terms of the will. In the present case, the deceased has not executed any will in favour of the legatees. In the absence of the fact that the succession is a testamentary succession, section 168 of the Act cannot be made applicable. The Explanation to section 168 states that in this section " executor " includes an administrator or other person administering the estate of a deceased person. This does not mean that the administrator includes the de facto administrator. While considering a question of a similar nature in Mahamaya Dassi v. CIT [1980] 126 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration is completed. However, the Bombay High Court in CIT v. Usha D. Shah [1981] 127 ITR 850 held that the term " executor " is not to be understood in the restricted sense as the Explanation to the section gives an extended meaning to the word " executor ", so as to include an administrator or other person, administering the estate of the deceased person, that is, one who is in de facto management of the property of the deceased person. This judgment of the Bombay High Court was later on explained by the same High Court in a subsequent decision in CWT v. Keshub Mahindra [1983] 139 ITR 22 in the following manner (at page 46) : " We have already pointed out that section 19A is a special provision, and unless a person falls within t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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