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TMI Blog1939 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Court at Calcutta (No. 183 of 1929) against one Ramprotap, and a minor grandson of Ramprotap, alleging that he was the adopted son of Ramprotap's deceased brother Amloke Chand, By way of relief he claimed declarations that he was the son of Amloke Chand, and that he was entitled jointly with Ramprotap to certain properties specified in a schedule attached to his plaint. He also asked for an enquiry as to what other properties were joint and for partition. On 23rd May 1930 a consent decree was made in the suit. The decree recited that the terms of settlement set forth in the schedule thereto had been agreed to by the adult parties and the guardian ad litem of the infant defendant, and that the Court was of opinion that it would be for the benefit of the infant defendant that the decree should be made. The operative portion of the decree, so far as relevant, ran thus : It is declared with the consent of the adult parties and the guardian ad litem of the infant defendant by their respective counsel that the said terms ought to be carried out and the same are ordered and decreed accordingly and it is further declared with the like consent that the plaintiff is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f settlement did not mention any specific items of the joint estate, although they provided for partition "of the joint properties as mentioned above. " On 28th July 1930 an order was made in the suit whereby the Official Receiver was appointed receiver "of the rents, issues and profits of the immovable properties belonging to the parties to this suit in the plaint in this suit mentioned," with liberty to divide the income into two equal shares and to pay one equal share to the appellant and Ramprotap respectively. The Official Receiver however never took possession under that order; and on 2nd April 1931 an order was made on the appellant's petition in the following terms: It is ordered that the said order dated 28th day of July last do stand varied in the manner indicated in the Schedule hereunder written and it is further ordered without prejudice to the rights of either party to apply to the Court for the re-appointment of the said Official Receiver as the Receiver of the properties mentioned in the said schedule (hereinafter referred to as the said properties) in the circumstances and on the conditions also mentioned in the said schedule and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from properties....... are liable to be assessed in the hands of the Receivers under S. 41 of the Act." The Income-tax Officer nevertheless assessed his total income at the figure of ₹ 48,628, which included a sum of ₹ 33,920 under the head "Property" in respect of properties specified in the schedule to the plaint, and in the schedule to the order of 2nd April 1931. The appellant appealed against this assessment, alleging that the assessment was wrong, as the properties "are in the hands of the Official Receiver appointed in Suit No. 183 of 1929," and further alleging that the assessment was wrong on the ground that his title, as claimed by him to the extent of a half share in respect of the properties, was disputed by Ramprotap. 6. In regard to the assessment of the appellant for the following year ending 31st March 1935, the same procedure took place. The appellant returned nil under the head "Property", alleging that the assessment should be made under S. 41 of the Act and that his title was in dispute; his total income was assessed by the Income-tax Officer at ₹ 54,558, which included a sum of ₹ 28,177 under the head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30th July 1936, ordering the respondent to show cause why he should not be required to state a case on the questions as framed by the appellant in his petitions. The case and the rule were heard together on 26th and 27th January 1937, and on 4th March 1937 the High Court delivered judgment, their answer to the question referred being that the assessee and Ramprotap were not managers of the properties appointed by or under any order of a Court within the meaning of Sec. 41, Income-tax Act, and that the Income-tax Officer did not act illegally in assessing the assessee in respect of his share of the property. 8. The appellant now appeals to His Majesty in Council from that judgment. An order was also made on 4th March 1937 discharging the order of 30th July 1936, and ordering the appellant to pay the costs of the application. From that order the appellant has not appealed. Their Lordships have thought it necessary to state the history of the case at some length in view of the course taken by the arguments before the Board. The question for decision on this appeal is simply whether the question referred to the High Court has been correctly answered; and it is not open to their Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is whether the case falls within S. 41. That Section provides as follows: 41.-In the case of income, profits or gains chargeable under this Act which are received by the Courts of Wards, the Administrators-General, the Official Trustees or by any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of a Court, the tax shall be levied upon and recoverable from such Court of Wards, Administrator-General, Official Trustee, receiver or manager in the like manner and to the same amounts as it would be leviable upon and recoverable from any person on whose behalf such income, profits or gains are received, and all the provisions of this Act shall apply accordingly. 10. In their Lordships opinion the case does not come within the words of the Section at all. The respondent and Ramprotap were never appointed receivers or managers by or under any order of the Court. The order of 2nd April 1931 did not do so nor did it purport to do so. It follows therefore that the Section has no application to the case, and that the question referred was correctly answered by the High Court. It is unnec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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