TMI Blog1933 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... . A notice had been served by the Income-Tax Officer under s. 22(2) of the Income Tax Act on the late Maharajadhiraj in respect of the income for the year ending on the 30th September, 1928. It was served upon a person who had no authority to receive it and it was accordingly cancelled and a fresh notice was served on the person who admittedly was in a position to deal with it. Time was requested of the Income Tax Officer for the purpose of making a return which time was granted. Before the extended time for making the return had expired the late Maharajadhiraj died. Later on the Income Tax Officer purported to apply s. 26(2) of the Income-tax Act and decided that under that section the present Maharajadhiraj had become liable to the tax wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 23. It is contended that s. 23, which is the only section of the Act which deals with the matter of assessment does not come into operation unless and until there has either been a return made by the assessee or he has failed to make an accurate return, and the assessee (for this purpose) being the late Maharajadhiraj of Darbhanga, he had not at the time of his death either made a return or failed to make a return and accordingly it is said that s. 23 had not come into operation and, therefore, sub- s. (2) of s. 26 has no application at all. In my opinion this contention is not well founded. Section 23 is the only section under which an assessment can be made and, therefore, the real meaning of the words, where at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the business cannot be treated as being the business of the late Maharajadhiraj but must be considered in law as being the business of the present Maharajadhiraj; in other words, the argument is that the Maharajadhiraj has succeeded to a special asset and that there has not been a continuing business. The argument does not appeal to me. I think that the plain meaning of the words is that if there is a business, profession or occupation which was formerly carried on by a person and that property has been now taken over directly by another person who continues the business, that transference of ownership whether it be by operation of law, as in this case, or by transfer inter vivos, is a succession. The real test of whether there has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following words:- Since the time of that purchase the respondents have been carrying on a business of the same character as was previously carried on by the County of Stafford Bank, on the same premises, and with the same staff of clerks as before. It appears to me impossible to say that there was not a succession by the respondents to the business of the County of Stafford Bank within the meaning of the Fourth Rule, unless we are to hold that the Rule only applies to cases where the successor was not, at the time of the succession, carrying on a business of the same kind as that succeeded to or where that business is isolated and kept apart from any other similar business previously carried on by him. Applying that test to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprecated. It would be in the highest degree improper for an assessee who was presenting what might be a novel, but at the same time a perfectly sound, point to be unable to impress the Income-tax Officer unless he could produce opinions what might even be against him or what might involve him in great deal of expense. It is just as undesirable that that practice should be followed as that the learned Advocate who is conducting the case on behalf of a client should be asked what his own opinion of the matter is. That is obviously impossible and we have not the Roman custom of fortifying an argument by the opinion of jurisconsult especially when they are still in actual practice. I would recommend that the Department cease this custom for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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