ESTATE OF LATE RANGALAL JAJODIA versus COMMISSIONER OF INCOME-TAX, MADRAS

897

A

B

c

D

E

F

G

ESTATE OF LATE RANGALAL JAJODIA

v.

COMMISSIONER OF INCOME-TAX, MADRAS November 19, 1970 [.J •. c. SHAH, G. K. MITTER, K. s. HEGDE, A. N. GROVER. AND A. N. RAY, JJ.]

Income-tu Act, 1~22, ss. 34(3) 2.nd Proviso and 248-Ass•ss11 dying IMf<WI compllllon of assusm1nt-Assessm1nt complet1d by l.T.O. ott OIHll#s legal repr~s•ntatlv•s Including dlllnherlt•d son-A.A.C. slltlntr alld1 OIHmntnt and directing l.T.O. to make fresh assusment on execu tors under asseuu's will-Case wheMer covered by s. 34(3) 211d proviso for purpo.re of extending 1imitatlo1>-Proc1dure for 're-assessment-App/I. C'ability of a. 248.

R 11led bis income-tax and excess profits tax returns before the Jncome tax Oftlcer/Ex.cess Profits Tax Officer for the assessment years 1942-43 and 11)43-44 and the corresponding chargeable ·accountiilg periods. He complied with the statutory notices issued to him by ·the said Revenue Offic:u but died before the assessments could be made. He was survived by A.· his second wife, his children by her, and by S, his son by a pre In his will A and another person B were named as execu clece•sed wi'fe. tors and S was disinherited. S performed the obsequies at the funeral of R and On this information the Revenue Officer gave notice to S asking him to show cause why assessment should not be made on him as the le~ representative of R. · It was objected by S that he was not legal represen tative, but he failed to produce a copy of the will. The Revenue Officer thereupon completed the assessments on the estate cJf R by his legal heirs and representatives among whom he included S, A and her children. On appeal by S the Appellate Assistant Commissioner, before whom a copy the of the wilt was produced, set aside the assessments and directed Revenue Officer to make fresh assessment on the executors in accordance with s. 24B of the Income-tax Act, 19.22. Pursuant to the direction the Revenue Officer issued notice to the executors. R's widow A accepted the · notice and requested the Revenue Officer to issue the copies of the record to enable her to make representation. The Revenue Officer held that it was not necessary to go through the formalities again. He completed the assessmen~ on 29th October 1952 more than four years after the end df the assessments years 1942-43 & 1943-44 respectively. In appeal by A the. Appellate Assistant Commissioner held that the assessments were valid· If made on a valid direction by the previoin Appellate Assistant Commis llloner. He however set aside the assessments and directed the Revenue Oftlcer to complete them after- giving the executrix a fresh opportunity to object to the assessment. The Tribunal upheld the order of the Appellate In reference the High Court held that the first Assistant Commi••ioner. assessment having been made On S who was not a legal representative, the direction given by the Al>llellate Assistant Commissioner was outside the scope of s. 34(3) of the--Act. The High Court also gave a finding that s. 24B was applicable to the proceeding.'! but that in the present case the section had nQ_t been complied with inasmuch as the p-rocedure for making assessment had not been followed de novo. Jn appeals before this Court filed by the Revenue as well 88 by A the questions that fell for considera tion were: (i) whether s. 34(3) 2nd proviso saved the assessments in the

808

SUPRBMB COUIT ltl!POl.TS

[1971) 2 S.C.R.

present case from the bar of limitation and (ii) whether s. 24B applied to A the case.

HELD: (i) The second proviso to s. 34(3) of the Act applied to the present appeals because, first, the proceedings against R commenced iin filing of returns before the Income-tax authorities; secondly, the. asoess ment prQCeedings continued after th' death· of R against. the legal repre sentatives S and A; thirdly, the asoe'8ment proceedings on being set aside B and not cancelled . pursuant to the a~al filed by S on the ground that notice was not given to A were continued and fourthly, the setting aside of the assessment was only on the ground ·that notice was not given to A and therefore the finding and direction was vital to the assessment pro ceedings. 1be High Court was in error in holding that the assessments were barred by limitation. [81S C-Dl

Income-tax Officer, Sitapur v. Murlidhar Bhagwanda.•, S2 I.t.R. 33S C

and S. C. Prarhad & Anr. v. Vasantun Dwarkadas ·& Ors. 49. l.T.R. 1, · distinguished.

(ii) The High Court correctly held that s. 24B of. the Act ap- . plied to present case. The third sub-section of s. 24B deals with 'Ii case of a person dying after having furnished a return. Further in the present case the Income-tax Officer had reason to believe the return to be incorrect· and he called upon R to fornish evidence. The Act further confers power on D the Revenue Officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for jhat purpose to issue appropriate notice which would have had to be served upon the deceased bad he survived. and in that beha1'f to require from the executor, administrator or other legal representatives of the deceased person anv· accounts or documents or further evidence which he might under the pro- visions of soc 22 and· 23 requi'e from the deceued penon. "[815 0-H)

E

[Counsel for the Revenue did not impeach the conclusion of the High ·

Court tnat in relation to A the provisions of s. 24B of the Act were to be followed· de novo.]

CJVJL. APPELLATE JURJSDICJ:ION ; Civil Appeals Nos. 2332

to 2335 and 2336 to 2339 of 1966.

Appeals from the judgment and order dated August 16, 1966 of the Madras High Court ~n Tax Case No. 171 of 1962 (Refe rence No: 96 of 19til).

F

. A. K. Sen and T. A. Ramachandran, for the appellant (in C.As. Nos. 2332 to 2335 of 1966) and the respondent (in C.As. Nos. 2336 to 2339 of 1966). ·

G

S. Mitra, G. c. Sharma. B. D. SJiarma for R. N. Sachthey, for the respondent (in C.As. Nos: 2332 to 2335 of 1966) and the appellant (in C.As. Nos. 2336 to 2339 of 1966).

The Judgment of the Couri was delivered by

H

Ray, J, These appeals are by certificate against the

judg· ment dated 16 August, 1965 of the High Court· of Madras on

RANGALAL \I, COMMI., OF INCOME.TAX (Ray, /.)

809

A a refemwe under section 66(1) of the Indian Income-tax Act.

1922 (hereinafter referred to as the Act) .

Seven questions were referred to the High Court. The re· ference involved first tb,e construction of the second proviso to sub-section (3) of section 34 of the Act, and, secondly, the the assessments

B applicability of -section 24 B ( 3) of the Act to

made on the executor to the estate oflate Rangalal Jajodia.

to

rise

!n order to appreciate the scope ot the reference, it is neces sary to iefer to the facts which gave the questions. Rangalal Jajodia (hereinafter referred to as the deceased) filed income.tax returns for the year 1942-43 and 1943-44 as well c as his excess profits tax returns ,for the corresponding chargeable accounting periods ending 31 December, 1941 and 31 Decem ber, 1942 before. the Income-tax Officer, Excess Profits Tax Officer, Madras, Special South Circle. On receipt of the returns, the officer issued the requisite statutory notices to the assessee for production of accounts and also other evidence in support Of the returns under sections 22(4) and 23(2) of the Act and D under the corresponding provisions of section 30 of the Excess' Profits Tax Act, 1940. Rangalal Jajodia complied with the aiore said noiice. But before the assessment to the income-tax and excess profits tax could be made Ran gala! J a jodia died on 11 January, 1946.

F

E

issued notice

Rangalal J ajodi~ was survived by Shankarlal Jajodia son by a pre-deceased wife, Arona Devi, the second wife and children by the second wife. Rangalal J ajodia had made a will on 16 April, 1945 whereby Arona Devi and one Ram Kumar Bhuwalka were executor and executrix respectively. Shankar Lal Jajodia was disinherited under the will. Shankarlal Jajodia however ·performed the funeral obsequies for the deceased. The Revenue on the basis of that information to Shankar!al. the Jajodia asking him to show cause why the assessment of deceased should not be made on him as the legal representative. Shankarlal Jajodia objected to the course stating that he was not the legal representative and that his step mother Aruna Devi and Ram Kumar Bhµwalka as the eicecutrix and executor res- G pectively were the proper persons o~ whom proceedings were to be taken. The Revenue called for a copy of the will which however was not produced. The assessment was completed on· 28 February, 1947 on the materials do.scribing the assessee as "the estate of late Shri Rangalal Jajodia by .legal heirs and re presentatives, Shri Shankarlal Jajodia, son of Rangalal Jajodia, · H Shrimati Aruna Devi, wife of Rangalal Jajodia and her children''.. .t ajodia who appealed to the Appellate Assistant Commissioner contend-

. The assessment orders were served on Shankarlal

810

SUPREME COURT REPORTS

[1971 ]2 S.C.R.

as

the

them

ing that he was not the legal representative. At the hearing of A the appeals on 30 April. 1952 Shankarlal Jajodia produced a copy of the will. The Appellate Assistant Commissioner set aside the assessment and directed the Revenue Officer to make a fresh assessment on the executors in accordance with section 24B of the Act. Pursuant to the direction of the Appellate Assistant Commissioner the Revenue t>liii:er informed the ex!".CU· B: trix and Ram Kumar Bhuwalka of his proposal to make assess ment QI1 representatives of Ranga· legal Jal Jajodia. Ram Kumar Bhuwalka who had refused to act as an executor intimated the fact to the Revenue Officer. Aruna DeVi. the executrix accepted the notice but requested the Revenue Officer to furnish her with copies of the returns, notes of exami- c nation and correspondence between the deceased and the Revenue · to enable her to make representations. The Revenue Officer however took the view that under section 24B of the Act it was not necessary to go through all the· formalities once again and. that the assessments were required to be done only the . purpose of inviting objections, if any, to the locus standi of . Arona Devi as the legal representative of the deceased. On the ·said view the Revenue Office~ completed the income-tax and excess profits tax assessments on the estate of late Rangalal Jajodia by executors Mrs. Aruna Devi and another. The assessments wete made on 29 October, · 1952 more than four ·years after the end of assessment years 1942-43 and 1943-44 respectively.

for

E:

I>

that

the previous F'

It was also contended that

The executrix Aruna Devi appealed against the assessments contending before the Appellate Assistant Commissioner that the assess~nts were barred by limitation and Appellate Assistant Commissioner's direction to make 1155ess reason ments on her was invalid. able opportunities were not given· to Aruna Devi before the assessments were made. The Appellate Assistant Commissio~r on 16 April, 1955 held that the assessments were validly made on a valid direction by the previous Appellate Assistant Com- G missioner. He however set aside t)le assessments directin$ the Revenue Officer to complete them. after giving the executrix a fresh opportunity to object appealed to the Appellate Tribunal. The Tribunal rejected the appeals on the ground that the assessments had been set aside by the Appellate Assistant Commissioner with the direction to give sufficient opportunities to her. On a reference taken by H Aruna Devi to the High Court, the High Court held that the Tribunal ought to have properly disposed of the appeals on all

to the assessment. Aruna Devi .

RANGALAL l', COMMR. OF lNCOME·TAX (Ray,/,)·

811,

A

B

the contentions raised therein. Pursuant to the order of the: High Court the Tribunal heard the appeals 0n merits on 9 .June,. the ·Reven~ 1961 and held that the re-assessment made by the that Olticer on Aruna Devi. the executrix was valid and assessments were saved ftom the bar of limitation by the second. ~ to section 34(3) of the Act. The Tribunal also held that the assessments were validly made under section 24B(3) of the Act.

. The High Court on reference under Section 66 ( 1) of tho Act hold that the second proviso to section 34(3) applird to save: that in the present. re-usessment from the bar of limitation but

C appeals,

the first assessments which were made on Shailkarlal .

D

Jajodia were set aside on appeal because these w~ not made Oil'. · the real legal representatives of the deceased and therefore no direction or finding could be made by the Revenue Authority· in any such appeal as would remove the bar of limitation Oli the· re-3SSC6sment later made on the executor who was to be regarded" , as an entirely ditrerent assessee. The High Court also hekl that the direction or finding given by the Appellate Assistant Com· missioner for making the assessment on the executors was un·· · necessary for the disposal of the appeals filed by Shantarlat Jajodia and therefore the direction and the findings were out the side the 'scope of the second proviso to section 34(3) of

E Act.

the wnt~ntion of

As to. section 24B sub-clause ( 3) of the Act, the High Court held that the section applied to the assessments in the present the appeals bl.It the High Court negatived Revenue that the assessments made on the executrix were made· in proper compliance with the procedure prescribed under section 24B ( 3) of the Act. The High Court held that it was a condi tion precedent to the validity of assessment to be made on . the.· legal representatives that the procedure prescribed for making· the assessment on the deceased assessee was to be repeated as. regards the assessment on the legal representative irreipeCtive of . the fact that such procedure was followed during the life time of" · the deceased.

The relevant provisions of section 34(3) of the Act neces· the second' sary for the purpose of the present appeals are proviso to the said sub-section. The said second proviso is as;. follows:

F

G

H

''Provided further that nothing contained

this section limiting the time within which any action may

in

.a 12

SUPREME COURT REPORTS

[1971] 2 S.C.R .

be taken or any order, assessment or re-assessment may be. made, shall apply to a re-a5sessment made under section 27 or to an. assessment or re-assessment made on the assessee or any person in consiquence or of to give effect to any fiinding or direction contained in an order under-section 31, section 3J, section 33A, section 33B, sectfon 66 or section 66A".

A

B

Counsel for the Revenue in C.A. No. 2336-2339 of 1966 ·contended that the second proviso saved the assessment from the bar of limitation by reason of an order of assessment havtng been made ·in consequence of a finding . or direction given by the Appellate Assistant Commissioner and secondly that Aruna c Devi ·was a person intimately connected with the assessment ·and that in fact the assessment was made on her, but the assessment was set aside because no notice was given to he.r. Counsel for the appellant Aruna Devi. in C.A. No. 2332-2335 of 1966 on the other contended first that Aruna Devi was not an assessee and therefore the benefit of the· second proviso to section 34(3). of D the Act would not avail. Secondly it was said that Aruna Devi was not intimately connected with the assessment and was not an assessee, because there was no proceeding in law under the Act against Aruna Devi and therefore she was not .an assessee. ·

E:

An assessee is defined in section 2 (2) of the Act meaning a . person by whom income-tax or any other sum of money is pay- able under this Act, and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the loss sustained by J:iim or of the amount of. refund due to him. It was said on behalf of the appellant Aruna Devi that the estate cannot be ari assessee and in order to make the legal representative an assessee a proceediug must F be taken against the executor under the Act. It was also said that in the final assessment ~runa Devi was assessed as an exe cutrix but no proceedin~ for assessment was taken against Aruna Devi as an executrix. Emphasis was placed on the fact that the . proceeding was against the estate which was unknown to law and even if the proceeding a~ainst the estate could be held to G be a vaDd proceeding Aruna Devi was never given any notice . and therefore no .proceeding was taken against her,

The assessment order shows the name of the assessee as the est.ate of l~te Shri Rang~lal J ajodia by lega.1 heirs and represen ·tatives Shn Shankarlal Ja1od1a, son of Shr1 Rangalal Jajodla. Smt. Arun Devi wife of Rangalal J ajodia and her children~ .ite 'Rangalal Jajodia had nled the ·assessment was completed. The assessment was made on Aruna

return. He died before

H

UNGAI.AI. v. COMMI.. OF INCOME-TAX (Ray,/.)

813

A Devi as legal representative: · She w~ ~ribed as legal re~resen­ tative but nat as an executnx. The liability IJillder the Act m case of death of a person is of the esceutor, administrator or legal repre sontative to be liable to pay out of the estate of the d~eased person to the extent to which the estate is capable of meetmg the charge the tax assessed as payable by such person or any tax which would have been paid by him under the Act if he had not died. B The Revenue in the assessme~ pfoceedings described the estate of Rangalal Jajodia by the legal h~irs and representatives., It cannot be denied that an executor 1s also a legal represental!ve.

D

What happened in the present assessment proceedings was that the pri>ceedings were commenced during the life-time o~ Rangalal c Jajodia by reason of the returns being filed by and notices under sections 22(3) and 23(2) of the Act having been served on Ranga-· la! Jajodia during his life-time. The assessment order contains intrinsic evidence to that effect as also of repeated intimation hav ing been given to Shankar!al Ja jodia after the death of Rangalal Jajodia. No reply having been received from ShankarlaI Jojodia, the assessment was completed under section 24B of the Act through the legal heirs and representatives including Aruna Devi. The Appellate Assistant Commissioner on an appeal perferred by Shankarlal J a.iodia set aside the assessment because no notice was. given to Aruna Devi though the ·assessment proceeding was against her as a legal representative. The Jack of a notice does not amount to the Revenue Authority having had no jurisdiction to assess but that the assessment was defective by reason of notice not having· -· - been given to her. 'An assessment proceeding does not ceue tO' · 'be a proceeding under the Act merely by reason of want eifnotice; It will be a proceeding liable to be challenged and corrected .. Similarly, if there is a mistake as to name or there is a misdescrip-' tion of the name, the proceeding will be liable to be challenged and corrected by giving notiee to the assessee subject to such just exceptions as an assessee can take under law. The direction given \y the Appellate Assistant Commissioner was to make fresh usesr rnent on Aruna Devi in accordance with the provisio•s of the . Act.

E

F

. Counsel for Aruria Devi relied on the decision of this Court 10 Income-tax Officer, Sitapur vs. Murlidhar Bhagwandas, SZ I.T.R. 335 in support of the proposition that no flncllng was neces sary in the present case because Aruna Devi was not an assessee' and was a different person. · We find that Aruna Devi was an H ~ in. the inc:orne-tax p~ings, but the proceedings were not 1!1. cophance with th.e Act by reason of the failure of giving the requ1'1te notice ot assCS1111ent and the requisite notice of deniand. In M11rlidhar's case (supra) the assessee appealed against an assess-.

..

I

t

:814

SUPREME COURT REPORTS

[ 1971] 2 S.C.R.

iment order and the Appellate Assistant Commissioner held that A .the income was received in the previous accounting year and .directed that the amount should be deleated from the assessment year 1949-50 and inch1ded in the assessment year 1948-49. Pur .suant to that direction the Income-tax Officer initated re-assessment ,proceedings in respect of the year 1948-49 and served a notice .on· 5 December, 1957. The question was whether the second B proviso applied and saved the notice in respect of the year 1948- ··49. · It was held that the jurisdiction of the Appellate Assistant ·Commissioner under seeti~ 31 of the 1922 Act was strictly con .. fined to the assessment order of the particular year under appeal and ·the assessment or-re-assessment made in consequence of or to give effect to any finding or direction contained in an order under c ·section 31, section 33A., section 33B, section 66 or section 66A :must necessarily relate to the assessment of the year under appeal. The expression 'finding and direction' in the second proviso to sec· ·ti on 34 ( 3 ) was held to be a finding necessary for giving relief in · -respect of the asSl',,ssment in question and that direction which the

:awellate or the revisional authority was empowe.:ed. to give under D ·the sections mentioned in that proviso. The finding in Murlidhar's ·case ( spura) that the income belonged to the year 1948-49 was ·not a finding necessary for the disposal of an appeal in respect of 1he year of assessment in question.

Counsel for Aruna Devi contended that the expression 'any per- E

son' occurring in the second proviso to section 34 ( 3) of the act ·could not be referable to a stranger and that Aruna Devi was a '.Stranger.. In support of that prop0sition reliance was placed on the decision of this Court in S. C. Pr;ishar & Anr. v. V asentsen Dwarkadas &: Ors. 49 I. T.R. 1. The facts of that case are ·entirely different and are of no assistance for the reason that in 1he present appeals Aruna Devi was impleaded as a party to F 1he assessment proceedings as a legal representative of Rangalal Jajodia. The words 'any person' were construed in Murlidhar's <:ase (supra) to be confined to a person. intimately conected ·with the. assessment year under appeal. It . was said in that case ·that "modification or setting aside assessment made on a ·fi:m, joint Hindu family, association of persons, for a particular yeai; G may . affect the. assessment fcir the said year on a patner or partners; ·of the firm, member or members of the Hindu undivided family ·or the individual,. as the case may be. In such cases though the latter are not eo nomine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative. It is not necessary further. .We would, therefore, hold that the expression 'any per son' in the setting in which it appears must be confined to a per- . ·son intimately connected in the aforesaid sense with the assess-

to pursue !he matter H

RANGALAL V. COMMR.. OF INCOME-TAX (Ray, J.)

815

A ments of the year under appeal-."

In the present appeals

the finding was that the asselisment was made on Aruna Devi but ne notice was given to her. The necessary direction was therefore given that notice should be given to her. Aruna Devi was heard and the assessmenf was made. She was not merely intimately eonnected with the assessment. She was in fact an assessee. 'Therefore, the Second proviso to section 34 ~3) applied.

B

We are therefore of opinion that the second proviso to sec tion 34(3) of the Act applies to the present appeals because first the proceedings against Rain.gala! Jajodia commenced on filing of returns 'before the income-tax authorities; secondly, the assess ment proceedings continued after the death of Rangalal Jajodia C against the legal representatives Shain:karlal Jajodia and Arona Devi; thirdly, the assessment proceedings on being set aside and not cancelled pursuant to the appeal filed by Shankarlal Jajodia' · on the ground that notice was not given to Aruna Devi were con tinued, and, fourthly, the setting aside of the assessment was only on the ground that notice was not given to Aruna I;>evi and there- D fore the finding and direction was vital to the assessment proced ings. The High Court was in.sirror in holding that the assessment proceedings were barred by limitation.

E

The other question is as to the applicabillity of section 24B of the Act. Counsel on behalf of Aruna Devi repeated the con- t1111tions advanced in the High Court that section 24B docs not cover the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that sec tion 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assesment by repeating the en· tire procedure of section 24B of the Act as during the life time of the deceased. Counsel for the Revenue did not impeach the · 11' conclusion of the High Court that in relation to Aruna Devi the provisions of section 24B ot the Act were to be followed de novo. We are of opinion that the High Court correctly held that section 24B of the Act applies to the present case. The third sub-section of section 24B deals with a case of a person dying after having furnished a return. Further, in the present case the Incdrne;tax incorrect or in

G Officer had reason to believe the return to be

complete, and he called upon Rangalal to furnish evidence. The . Act further confers power on the Revenue officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for that purpose to issue appropriate notice which would have had to be served upon the deceased H had .h~ survived and in that behalf to require from the executor; admlll!strator or other legal representative of .the deceased person · any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased

816

SUPREME COURT REPORTS

[1971] 2 S.C.R.

person. These provision adequately answer the contention of the A appellant Aruna Devi.

For these reasons we hold that the High Court was in error in holding that the second proviso to section 34(3) .of the Act did not save the assessments and therefore we set aside the judg ment of the High Court and allow the appeals of the Revenue in B C.A. Nos. 2336-2339 of 1966.

·As for appeals C.A. Nos. 2332-2335 of 1966 we·uphold the conclusion of the High Court and dismiss the appeals. Each party will bear and pay its own costs in all these appeals.

G.C.

C.A. Nos. 2336-2339 of 1966 allowed. C

C.A. Nos. 2332-2335 of 1966 dismissed.