9911796707
TMI Blog1982 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... esiding beyond the jurisdiction of this High Court at Varanasi. This court on the application of Shri Shantilal Mehta (who was the duly constituted attorney in India of the Rani) appointed him as the administrator of the estate of the late " Rana " by an order dated 16th January, 1954. It may be appropriate to refer to the order appointing the administrator. The said order after stating the facts that the " Rana " died and the further fact that the constituted attorney of the " Rana " had applied that be (the Rana) died intestate and the further fact that the sole heir was the "Rani" observed, inter alia, as follows: " for the use and benefit of the said Rani Jagadamba Kumari Devi and limited until she, the said Rani Jagadamba Kumari Devi, shall obtain from this court letters of administration of the property and credits of the deceased abovenamed he, the said Shantilal Mehta, having undertaken to administer the said property." In the course of the original assessments " Rana " had made a declaration that the income received by him from the various investments belonged to a trust of which he was only one of the 36 beneficiaries and the ITO, therefore, made the assessments on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to refer to certain portions of the said order. The AAC referred to the relevant provisions of ss. 211(1), 241 and 243 of the Indian Succession Act. It may not be inappropriate in view of the facts involved in this case to refer to s. 21l(1) of the Act, which reads as follows: " 211. Character and property of executor and administrator as such.(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such." Section 241 deals with the grants for the use and benefit of others having right. The said section reads as follows: " 241. Administration with will annexed, to attorney of absent executor. When any executor is absent from the State in which application is made, and there is no executor within the State willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited, until he shall obtain probate or letters of administration granted to himself. " Section 243 deals with a situation like the present one, that is to say, administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the said provisions in the light of ss. 159 and 168 of the I.T. Act, 1961, and the relevant authorities, the AAC cancelled the assessments and held that the assessments should have been made on the administrator. There was a further appeal before the Tribunal. The Tribunal, after considering the rival contentions and the facts, observed as follows : " We have considered the rival submissions. At the outset it will be necessary to point out that the issue before us is whether the assessments on Rani Jagadamba Kumari Devi as the legal representative of the late Rana were rightly made or not and we have to decide this issue which is before us on merits regardless of what has happened in the assessments of Shri Shantilal Mehta, Administrator to the estate of the late Rana. It will also be not out of place to point out that the remedy will be open to the assessee to have the wrong assessments cancelled by keeping the issue alive by filing appeals or by moving the Commissioner under s. 264 and requesting for the condonation of the delay so that the wrong assessment is cancelled and the correct assessment stands. As reading of sections 159 and 168 clearly shows that while section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidentally mention that for the assessment years 1970-71 and 1971-72 a question was: referred to us in I.T. Reference No. 252 of 1976 (CIT v. Rani Jagadamba Kumari Devi) reported as Appendix at p. 539. In that case the assessee was subjected to an assessment in respect of the income which related to the period after the death of the late " Rana " which was under the administration of the administrator appointed by the court in respect of the judgment delivered and an order passed on 6th of July, 1981. We have held that in view of the provisions of s. 168 of the I.T. Act, 1961, it was clear that the administrator appointed by this court would admittedly come within the purview of s. 168. The Tribunal was right in coming to the conclusion that the assessment could be made only on the administrator. As we have mentioned before, this (case) related to the income subsequent to the death of the deceased. We are concerned in the instant reference before us with the income which accrued to the deceased prior to his death. This position, in our opinion, appears to be governed by s. 159 of the I.T. Act. The said section provides as follows : " 159. Legal representatives.-(1) Where a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned hereinbefore would not as such come within the meaning of the section as " representative assessee " specially to the extent the assessee has been used in cl. ' C ' under the heading " Representative assessees special cases " of the said chapter. Clause ' C ' also deals with the representative assessees in special cases These are provided under ss. 163 and 164. The present case would not also come within the purview of the said section. Section 168 deals with executors and provides as follows: " 168. Executors.( 1) Subject as hereinafter provided, the income of the estate of a deceased person shall be chargeable to tax in the hands of 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the heir would depend not by the grant or order appointing the administrator but by survivorship or inheritance, as the case may be. This would be clear if s. 211 is read with s. 212. Be that as it may, as we have referred to the expression used in s. 159 of the I.T. Act, sub-s. (1) of which enjoins that the legal representative shall be liable to pay any sum if the deceased would have been liable to pay if he had not died in the like manner and to the same extent as the deceased. The expression " legal representative " is defined in s. 2(29) of the I.T. Act that the " legal representative " has the meaning assigned to it in cl. (11) of s. 2 of the CPC, 1908. Clause (11) of the CPC indicates that a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Therefore, in order to consider whether on whom reassessment should have been made, one has to find out who was the legal representative contemplated by sub-s. (1) of s. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " in the Civil Procedure Code would be relevant in that case and observed, inter alia, as follows (p. 888): " Whether that definition can govern the construction of the expression in the Income-tax Act or not, it can guide its proper interpretation. It is the representation of the estate of the deceased that invests a person with a representative character. Heirs who succeed to the estate, an executor or administrator in whom the estate vests virtute officii and even an intermeddler in possession of the estate purporting to be a heir at law, though not in fact all alike effectively represent the estate to the outside world. This is plain enough and is not controvertible. The heir of the deceased in possession of the estate is a legal representative whether under the definition in the Civil Procedure Code or in its popular sense." In the case of Kamalesh Kumar Mehta v. CIT [1977] 106 ITR 855 (Cal), this court had to deal with the question in a different context on the ground that at the time of the assessment by the ITO, the assessee was dead and no notice had been given to the assessee's legal representatives before the assessment; the AAC set aside the order of assessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the death. After the death of the original assessee, the assessment proceedings can only continue in the name of the legal representatives. There is no restriction in section 34 for assessment of an estate of a deceased person nor does that section nor section 24B provide for any special form of notice of reassessment in such cases. In any event, there is no challenge as to the form of the notice. The only contention has been that the assessee as an administrator should not have been served with a notice under section 34 in respect of income accruing during the lifetime of the owner of the estate." Another decision of the Calcutta High Court was relied on. Our attention was drawn to the case of I M. Thapar (Executor to the Estate of Late Lala Karam Chand Thapar) v. CIT [1979] 116 ITR 797 (Cal). The re, probate had not been obtained as yet, and the administration of the estate was not complete. It was held that the executors having been appointed, legally they represented the estate. Their Lordships referred to the definition of " legal representative " in the Civil Procedure Code and referred to s. 211 of the Indian Succession Act and held that it was the executors who could rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
