TMI Blog1962 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 1957, the applicant filed five appeals before the Appellate Assistant Commissioner against the assessment orders for the aforesaid five years. Along with the memo of appeals the applicant filed an affidavit explaining the delay in the matter of filing the appeals. After stating that he attained majority on 23rd June, 1956, and that his estate was restored to him on 4th April, 1957, under the orders of the Government, he further stated: That was for the first time on April 4, 1957, I came to know that certain assessments were made on me by the Income-tax Officer, Kolhapur, for the assessment years 1950-51 to 1954-55 (both inclusive) and that the Collector and court of wards, Kolhapur, my guardian, had filed to file appeals against those assessments within the prescribed time. I never knew anything about these assessments or failure to appeal against the same, on the part of my guardian, the Collector and court of wards, Kolhapur, prior to the aforesaid date, viz., the 4th day of April, 1957. That immediately after 4th April, 1957, I have taken all the necessary and adequate steps to protect my rights by preferring appeals against all the aforesaid assessments before then? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem prior to 4th April, 1957. In this view of the matter the appeals were dismissed by the Tribunal. On an application made by the applicant, the Tribunal, after drawing up a statement of case, has referred the following six questions of law to this court: (1) Whether in the facts and circumstances of the case the applicant was the assessee and entitled to prefer appeals before the Appellate Assistant Commissioner in respect of the assessment years 1950-51 to 1954-55? (2) Whether in the facts and circumstances of the case the assessments were made under section 40(1) of the Act? (3) Whether in the facts and circumstances of the case, assuming the assessments were made on the court of wards, the applicant is barred from preferring the appeals? (4) Whether in the facts and circumstances of the case the appeals were filed in time? (5) Whether in the facts and circumstances of the case there is any material for the Tribunal to reject the applicant's statement in the affidavit that he came to know about the assessments on April 4, 1957, when the superintendence and control over his estate was removed? (6) Whether in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal position. The Tribunal has included the assessment order of all the five years as part of the statement of case and a perusal of these five orders of sufficient to show that the person against whom assessment orders were made was the applicant and not the court of wards. It is not necessary to reproduce the material parts of all the five assessment orders. They are more or less identical in terms. It would be sufficient, therefore, to refer to the assessment order of only one year and we will refer to the assessment order of 1950-51. Now, in this assessment order, the name of the assessee given is Shri Govindrao alias Abasaheb Ghorpade minor jagirdar of Ichalkaranji, Guardian Court of Wards, Kolhapur. The status of the assessee is shown as individual . The section under which the assessment is made is shown to be section 23(3). The opening sentence of the assessment order is: The assessee is the present jagirdar of Ichalkaranji. That being the position on record, there cannot be doubt that the contention of Mr. Palkhivala that the applicant is really the assessee in the sense that he is the person against whom the assessment orders were made is well founded. The argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards was his guardian. Naturally, therefore, notice under section 22 of the Act would be served on the guardian of the minor assessee. The court of wards, who is the guardian of the minor assessee, would file the return and similarly notice of demand would also be served on the court of wards. It would be seen from the provisions of section 27 that it empowers the Income-tax Officer to serve notices of demand not only on the assessee but also on any other person, who is liable to pay tax. The estate of the applicant was under the management of the court of wards. Naturally, therefore, the court of wards was under a liability to meet lawful demands on the estate of the minor. The facts, therefore, that the notice of demand was served by the Income-tax Officer on the court of wards cannot be taken as a decisive factor leading to the conclusion that the assessee was the court of wards. Turning to the provisions of the Court of Wards Act, section 4 thereof empowers the court of wards to assume superintendence of property of disqualified land-holders and pension-holders after following a certain procedure mentioned therein. Section 5 enumerates the disqualified land-holders and pensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the aforesaid assessment orders. Section 30 confers a right on any assessee objecting to the income assessed, etc. Now, assessee has been defined in sub-section (2) of section 2 of the Act in the following terms: 'assessee' means a person by whom income-tax or any other sum of money is payable under this Act, and included every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. It would be seen that the aforesaid definition of assessee is wider in terms and is not confined to the person against whom an assessment order been made or who has been called upon by the department to pay the tax. It included every person in respect of whom any proceeding under this Act has been taken for the assessment of his income and also a person liable to pay tax. Section 41(2), to which we have already referred, fastens liability to pay tax on the applicant. The assessments relate to the income of the applicant. The fact that the court of wards has assumed superintendence and management of the estate cannot and does not have the effect of making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied that the appellant had sufficient cause for not presenting it within that period. It, therefore, follows that if an appellant contends before the appellate authority that the delay on his part in the matter of filing the appeal should be condoned and the appeal be accepted after the expiration of the said period, it is the statutory obligation cast on the appellate authority to consider whether sufficient cause for not presenting an appeal within time has been shown by the appellant to entitle him to condonation of a delay. In the present case the appellant had stated certain grounds for condonation of the delay and those grounds were that during the minority of the applicant his estate was under the management and superintendence of the court of wards; he had no knowledge of the assessment proceedings or the assessment orders or the service of notice of demand and he, for the first time, on 4th April 1957, when the management was handed over to him, knew the assessment orders had been issued for the five years and no appeals had been filed by the court of wards. On averment of these facts he claimed that delay in the filing of the appeals be condoned. It appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in the appeals filed by the applicant before him (Appellate Assistant Commissioner). As already stated, the ground on which the decision of the Appellate Assistant Commissioner in this respect has been sustained by the Tribunal, for reasons stated above, cannot be sustained. We have also stated that it is the duty of the Appellate Tribunal to consider whether sufficient ground for getting the delay condoned had been made out or not and that aspect of the case does not appear to have been considered either by the Appellate Assistant Commissioner or by the Tribunal. Mr. Joshi, however, contends that at the material time the assessee was minor, the court of wards was his guardian; and a notice to the court of wards was a notice to the applicant. Consequently, the knowledge of the court wards would be the knowledge of the applicant and it must be held that, right from the date the notice of demand were served on the court of wards, the applicant had knowledge of the fact that notices of demand had been served and in this view of the matter it must be held the there was no sufficient cause for condoning the delay in filing these appeals. We do not propose to express oursel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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