TMI Blog1956 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... o exist sometime before the death of Gokul Chand Bairoliya. While, however, Gokul Chand Bairoliya was alive and the aforesaid business had not ceased to exist, certain assessments had been made under the Indian Income-tax Act against the Hindu undivided family for the income received from that firm. The total amount of such assessments for the period from 1944 to 1951 came to a sum near about Rs. 56,000 out of which a part was paid and the balance of about Rs. 33,562 was left unpaid. Similarly, under the Bihar Sales Tax Act also some assessments were then made against that Hindu undivided family for the period from October, 1942, to October, 1949, and the total amount assessed under that Act during that period was near about Rs. 11,500 out of which a part payment was made and the balance of Rs. 5,642-1-9 was left unpaid. On the death of Gokul Chand Bairoliya, the Income-tax Department as well as the Sales Tax Department issued requisitions for the aforesaid unpaid amounts and sent them to the Col- lector of Darbhanga for their realisation under the Public Demands Recovery Act. The certificate office on the receipt of those requisitions started proceedings against all the three sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the parties before us that for the purposes of the Income-tax Act and the Bihar Sales Tax Act the position of a Hindu undivided family is that of a legal entity. In our opinion this point is firmly established both on principle and by authorities. Under the Income-tax Act we get a full support of this view from the wordings of sections 2(2), 2(9), 3 and 14(1) as also from the authorities laid down in Bejoy Singh v. Commissioner of Income-tax(1), Kotha Govindarajulu Chettiar v. Commissioner of Income-tax(2), Commissioner of Income-tax v. Visheswar Singh(3) and Commissioner of Income-tax v. Sanichar Sah Bhim Sah(4). Likewise, the Bihar Sales Tax Act under sections 2(c), 4, 13 and 20 leads to the same conclusion. That being so, the only question, as already stated above, that deserves some consideration in this connection is as to whether if an assessee under these Acts is a Hindu undivided family, which as in this case still continues to exist, can the execution for the realisation of the amounts assessed (1) [1933] 1 I.T.R. 135. (3) [1935] 3 I.T.R. 216. (2) [1944] 12 I.T.R. 97. (4) [1955] 27 I.T.R. 307. against that unit in the lifetime of the then karta be levied on his death by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice: Provided that the Commissioner may, in respect of any particular dealer and for reasons to be recorded in writing, extend the date of such payment or allow such dealer to pay the tax due and the penalty, if any, by instalments. "(6) Any amount of tax together with the penalty, if any, which remains unpaid after the date specified in the notice issued under sub- section (4) including the penalty, if any, imposed under sub-section (5) shall be recoverable as an arrear of land revenue: Provided that when a dealer has presented any appeal under sec- tion 24, the appellate authority may, in its discretion, treat the assessee as not being in default so long as the appeal remains pending." The effect of the provision in each of the aforesaid sections is that the dues under the Income-tax Act as well as under the Bihar Sales Tax Act are made equivalent to public demands as contemplated by section 3(6) and Schedule 1, item 3, of the Bihar and Orissa Public Demands Recovery Act, 1914, and may, therefore, be realised under that Act. In the present case the requisitions issued by the Income-tax Department and the Sales Tax Department, which were sent to the Collector for realisation, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention in prison; for example, it may be realised by attachment and sale or by sale alone of the assets of that family though its assets or any part of it may be at that time in the hands of the junior members of that Hindu undivided family. In this connection certain amount of argument was advanced on the footing of section 25A in the Income-tax Act. Sub-section (2) of that section reads: "Where such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partition- ed on or after the last day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding anything contained in sub-section (1) of section 14 be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; and the Income-tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature in fact wanted to apply the same principle even in a situation where the family remained undivided within the meaning of the Income- tax Act, they could have provided a similar provision to that effect specially in the body of the Income-tax Act. That not having been pro- vided, such a rule cannot be inferred by analogy. It has, therefore, to be held that the Certificate Officer has no jurisdiction to execute the certificates issued for the payment of arrears of income-tax and sales tax assessed in the name of the Hindu undivided family by the arrest and detention in prison of the present plaintiffs whose only relation with the family so far brought to our notice is that they happen to be its junior members. Mr. Lal Narayan Sinha appearing for the State of Bihar, however, tried to support the judgment of the trial Court on the ground that the suit itself as framed is not maintainable in law. According to his conten- tion, the question as to the mode of execution of a certificate or a decree relates to the execution of that certificate or decree and as such the proper forum to raise an objection against a particular mode followed in the execution proceeding is the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands Recovery Act. The learned Government Advocate further raised another small point. That is to the effect that the facts stated in the plaint are not sufficient to entitle the plaintiffs to the reliefs sought by them in the plaint. What he meant by this argument is that though there is averment made in the plaint that no immovable property was left behind by Gokul Chand Bairoliya yet the plaint as contended by him is significantly silent on the point of movables left by him. Technically, there may be some substance in this contention, but on reading the plaint as a whole I think it is apparent that what the plaintiffs meant to allege in the plaint was that Gokul Chand Bairoliya died without leaving any property either movable or immovable and that in any case the plaintiffs did not come in possession of any part of the property movable or immovable which originally belonged to the joint family or still belongs to the joint family. In the plaint the main relief sought by them, as it appears to me, is that the certificates for the realisation of the taxes assessed on the Hindu undivided family cannot be realised by the arrest and detention in prison of the plaintiffs. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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