TMI Blog1957 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... perties of Ebenezer. The receiver appears to have taken charge of most of the immovable properties and to have realised the income therefrom till he was discharged on 15th January, 1953. He filed his accounts into Court on 4th November, 1950, 4th June, 1951, and 2nd February, 1952, and 4th November, 1952. On 29th September, 1950, there was a preliminary decree for partition. Three of the minor daughters had been represented in the litigation by one Chelladorai as their guardian ad-litem. On 25th March, 1953, one T.S. Tatachari was appointed the guardian of their properties under the Guardians and Wards Act. On 30th September, 1953, a Commissioner was ordered to be appointed to divide the properties in accordance with the directions given in the preliminary decree. As we noted above, the assessment for the assessment year 1944-45, for the corresponding year of account ending with 31st March, 1944, was completed during the lifetime of Ebenezer. The assessment for the year 1945-46 was made after the death of Ebenezer but on the return filed by Ebenezer during his lifetime. For the assessment year 1946-47 the return was filed by the petitioner Alfred. In the course of these assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 31st March, 1944. Paragraph 5 of the memorandum of appeal ran: The assessment is illegal and wholly arbitrary since it is not made on all the legal representatives of the deceased. Independent of the appeal, the petitioner applied under article 226 of the Constitution for the issue of a writ of certiorari to set aside the revised assessment ordered by the Income-tax Officer under section 34 of the Act. After the petition had been heard in part we found it necessary to send for the relevant papers in the administration suit O.S. No. 121 of 1948 to verify among others whether the position taken up by the Department, that the petitioner Alfred was all along in possession of the assets of Ebenezer was correct. Subsequent to that the petitioner was allowed to file a further affidavit which he did on 29th November, 1956. The Department filed a further counter affidavit on 12th December, 1956. One of the grounds on which the validity of the assessment under section 34 for the assessment year 1944-45 was attacked was that it was barred by limitation. As we said, at the initial stage the petitioner asserted that the order of assessment was passed on 31st March, 1953. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently assail the validity of the assessment. No reported case has been brought to our notice in which either of these questions was discussed or decided. That was why we decided in favour of examining these questions in these proceedings initiated under article 226 of the Constitution. We can see no reason why the principle of representation explained in Chaturbujadoss Kushaldoss and Sons v. Rajamanicka Mudali [1931] I.L.R. 54 Mad. 212 and approved of by Varadachariar, J., as a member of a Full Bench in Kanchamalai Pathar v. Shahaji Rajah Sahib [1936] I.L.R. 59 Mad. 461 at 484 should not apply to proceedings under section 24B(2) of the Income-tax Act. If for example (1) the Income-tax Officer bona fide believed and acted on that belief that Alfred was the only legal representative of Ebenezer, (2) Alfred did not bring to the notice of the Income-tax Officer that there were other legal representatives who should be brought on record and assessment completed in their presence as well, (3) Alfred represented the estate of the deceased Ebenezer in the assessment proceedings, and (4) there was no fraud or collusion, it could well be that the entire body of legal representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benezer. With such conflicting claims, it was the duty of the Income-tax Officer to make further enquiries to verify if Alfred was really in possession of the entire assets of the deceased Ebenezer. As we pointed out, the Income- tax Officer was certainly aware of the pendency of O.S. No. 121 of 1948. An enquiry would have revealed that Alfred was not in possession of the entire estate. There was a receiver appointed by the Court and he was in possession of many of the items of immovable properties, and he was realising the income therefrom. We do not want to be understood as laying down that possession of the entire assets would have sufficed to establish that Alfred could, in the opinion of the Income-tax Officer, represent the estate of the deceased. All we desire to point out is that even the plea of the Income-tax Officer, that he bona fide believed that Alfred was in such possession, could not be sustained. There was no indication even in the supplemental counter affidavit that the Income-tax Officer made any independent enquiries with reference, for example, to the records of the Court in O.S. No. 121 of 1948. That would have revealed to him among other things that the recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted without notice to the other legal representatives of Ebenezer. Nothing that Alfred did estopped him from challenging the validity of the assessment. The learned counsel for the Department relied on the observations of Varadachariar, J., in Venkatanarasimha Raju v. Sidha Chetty [1937] 1 M.L.J. 399 at 403, where with reference to the provisions of the Estates Land Act the learned Judge observed: The result is that if the landlord finding a person in possession bona fide believed that person to be legally in possession as heir and that person further happens to be entitled to an undivided share in the holding it will be scarcely fair to permit other persons entitled to the remaining undivided shares to treat the proceedings taken against the registered holder as a nullity so far as they are concerned, when with the knowledge of the landlord's conduct they have chosen to stand by. But then the facts and questions at issue in the case before us are in no way identical. As we pointed out the question is not whether any of the petitioner's co-heirs could attack the validity of the assessment. The question is, can the petitioner in whose presence the assessment was co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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