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TMI Blog1953 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... hed to his male heirs or to a son to be adopted by his wife after his death. The testator left no male heir and after his death, his widow adopted the present applicant, Asit Kumar Ghosh, as her son. The widow herself died in 1933. 3. Before the administration of the estate by the executors was completed, Asit Kumar Ghosh brought a suit for administration and accounts against the estate executors in the High Court in which by an order dated 12th of August, 1948, the High Court appointed Asit Kumar Ghosh as interim receiver of the estate and the receiver was put in possession on 23rd of August, 1948. 4. The assessment relates to the assessment year 1944-45, the relevant accounting period being the year ending 31st March, 1944. The notice under Section 22 (2) by the Income-tax Officer calling for the return was issued to and served on the executors of the estate of Akshoy Kumar Ghosh, deceased, on 16th September, 1944. The executors in compliance filed the return on 22nd June, 1945, of income of the estate. It, however, appears that owing to some reasons, the settlement of the assessment was delayed. During the course of the proceedings before the Income-tax Officer, the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant have been incorporated in the above mentioned question formulated by us. * * * This statement was sent to the parties for their suggestions. The department had no suggestion to make and the suggestions made by the assessee were in the form of a long argument and were not considered relevant. R. B. Pal and J. M. Banerjee, for the assessee. eyer and B. L. Pal, for the Commissioner. JUDGMENT CHAKRAVARTTI, C.J.--The question referred in this case might well have been a larger and a more difficult one, but all that it comprises and all that really arises out of the order of the Tribunal is a very slender point. The answer to that point, to my mind, is plain. The facts are these. The assessee is the adopted son of one Akshoy Kumar Ghosh who died in 1931, leaving a large estate, a widow and a will. By the will he directed certain payments to be made out of the income of his properties and bequeathed the residue of the estate to his natural son or sons, if any were alive at his death, or, in the absence of such son or sons to the son who might be adopted by his widow for which he gave her the requisite authority. Three persons were appointed executors who were directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as completed after some examination of the books in which the executors appear to have participated. The assessee did not accept the assessment and preferred an appeal to the Appellate Assistant Commissioner. Before that officer it was contended by the assessee that no assessment could be levied on him for the assessment year in question under either Section 41(1) of the Income-tax Act or any other section. The contention was overruled and when repeated before the Appellate Tribunal, it met with the same fate. The reason given for the rejection of the plea was that it was at the assessee's own request that he had been substituted and that the order of the High Court which he had produced authorised him to take charge of all proceedings pending against the estate. The assessee thereafter, required the Tribunal to refer the question to this Court and it has been referred in the following form:- "Whether in view of the fact that the applicant receiver was substituted for the executors on the records of the assessment on his own application pursuant to the orders of the High Court, the assessment on the applicant for the assessment year 1944-45 was sustainable in law." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the later stages of the proceedings validated the assessment, was considered. As to the two contentions urged by Mr. Meyer, the first is really a plea of estoppel. I do not, however, see how if the Act does not authorise the assessment of the assessee for the income which had neither been received by him nor received by the executors on his behalf, there could be an estoppel against the statute. Estoppel is only a rule of evidence and not a cause of action. In any event, estoppel is not a basis of liability to assessment under the Indian Income-tax Act, and, therefore, the assessment of a person for an amount of income to which he is a stranger cannot be based on the ground that he himself wanted to be assessed on it. Nor do I find the necessary ingredients of estoppel present in the facts of the case. In order that estoppel can be made out, it must be established that the person sought to be estopped made a representation of fact which was not known to the person to whom the representation was made and that by such representation, the latter was made to alter his position which would not have otherwise done. All that happened in the present case was that the assessee brought the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was perfectly valid. In my view, Mr. Meyer claimed for the order of the High Court far greater effect than it was intended to have or than it could have in law. The High Court only gave the assessee liberty to apply for substitution in legal proceedings pending against the estate, but it did not say that in whatever proceedings the assessee might apply, he would have to be substituted and that the substitution would be valid and effective, even if the relevant law did not permit such substitution. The order of the High Court meant and could only mean that the assessee would have the liberty to apply for substitution in a pending proceeding, if he was so advised. But whether he would be actually substituted or not would depend upon the nature of the proceeding. The present assessment proceeding was a proceeding against the executors in respect of some income which had not been received by them on behalf of the assessee, but which was their own income, in view of the fact that at the relevant time the administration of the estate had not been completed. That is the position in law and so it was declared to be by the Privy Council with respect to the status of these very executors in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in the assessment order was written the name "His Highness Maharaja Sir Bhupindra Singh late Maharaja of Patiala." The position, therefore, was that a notice calling for the return was served upon the death of an assessee on his legal representative without, however, the addressee being described as such representative. But the legal representative, so served with the notice understood it to relate to the income of his predecessor and submitted a return for his income. In those circumstances, it was observed by Sir John Beaumont that "any irregularities in this respect were waived by the Maharaja." The learned Chief Justice, however, was careful to add that he did not wish to give any countenance to the idea that the provisions of Section 24B need not be strictly complied with and that he was saying that the assessment was valid, though not strictly made in accordance with the provisions of Section 24B only in the particular facts of that case and having regard to the fact that the question had become one of merely academic interest. Mr. Justice Kania, who agreed with the learned Chief Justice in holding the assessment to be valid, put the true position, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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