9911796707
TMI Blog1963 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is unnecessary to consider the effect of sub-section (2) of section 41 of the Indian Income-tax Act. We accordingly allow the appeals and grant permission to the appellant to proceed against Bibhuti Bhusan Sen as receiver of the assets of the firm, Messrs. Sen Brothers and Co. - - - - - Dated:- 8-5-1963 - Judge(s) : B. P. SINHA., S. K. DAS., A. K. SARKAR., K. N. WANCHOO., K. C. DAS GUPTA JUDGMENT The judgment of the court was delivered by S. K. DAS J.--These appeals are from an order of the High Court of Calcutta dated April 3, 1953, by which the said High Court rejected an application made on behalf of the appellant herein to grant leave to attach and sell through the Certificate Officer, Alipore, the properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income-tax, West Bengal, made an application to the High Court by which they asked for two reliefs, namely, (a) leave to attach and sell through the Certificate Officer, Alipore, the property and assets of Sen Brothers and Co. in the hands of Sisir Kumar Basu, the receiver, and to realise the arrears of income-tax due from Sen Brothers and Co. and from the said receiver, out of the sale proceeds and (b) leave to serve notice under section 46(5A) of the Income-tax Act on the said receiver, that is, Sisu Kumar Basu, and to take further proceedings as provided in the section. A rule was issued on that application by P. N. Mookherjee and Renupada Mukherjee JJ. in terms of the prayers. Thereafter, while the rule was pending, Sisir Kumar Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver who was not assessed and who could not be substituted in place of the assessee receiver. The appellant has not now pressed before us prayer (b) referred to earlier in this judgment. Indeed, at the time of asking for a certificate from the High Court, it was stated on behalf of the appellant that no notice under section 46(5A) could issue against the receiver who was then in possession The only point on which a certificate was asked for and was granted was the proper interpretation of sub-section (2) of section 41 of the Indian Income-tax Act. That sub-section reads as follows : " Nothing contained in sub-section (1) shall prevent either the direct assessment of the person on whose behalf income, profits or gains therein referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wrong. " The point raised is not free from difficulty, and in view of the provisions of section 65 of the Income-tax Act, the question might well arise whether any proceedings for recovery of tax, lay against the successor to the assessee receivers, in the absence of any assessment on the owners of the firm. Fortunately for us, these appeals can now be disposed of on the short ground that Bibhuti Bhusan Sen has now been appointed receiver in place of M. K. Sen, discharged by the order of the High Court dated March 28, 1958. Bibhuti Bhusan Sen as one of the receivers was an assessee on whom assessment was made with respect to the income of the firm for the years 1945-46, 1950-51, 1951-52 and 1952-53. These are the assessments in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
