TMI Blog1971 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 34(1A) read with section 23(4) of the Indian Income-tax Act, 1922, on a total income of Rs. 22,00,135.46. On the 7th November, 1958, notice of demand under section 29 of the Indian Income-tax Act, 1922, in the name of the said Kanailall Jatia was served on the petitioners as heirs and legal representatives. Thereafter, an appeal was preferred before the Appellate Assistant Commissioner against the said assessment order under section 34(1A) of the Indian Income-tax Act, 1922. On 11th July, 1961, the said assessment under section 34(1A) was set aside on the ground that the ex parte assessment had been made on a dead person. On the 28th July, 1962, notice under section 22(4) of the Indian Income-tax Act was served on the petitioners who were the heirs and, legal representatives of Kanailall Jatia, since deceased. In August, 1962, a fresh order of assessment under section 34(1A) and section 23(4) read with sections 31(3) and 24B(2) of the Indian Income-tax Act, 1922, was made on a total income of Rs. 22,46,546 and a sum of Rs. 19,92,358.34 was determined as tax payable. The said assessment was made on the basis that notice under section 22(4) of the Indian income-tax Act, 192 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed any further. From the facts stated hereinbefore it is clear that the assessment order had been set aside and the Income-tax Officer had been directed, as a result of the order, to proceed afresh and make a fresh assessment. In this context it is apparent, therefore, that the certificate proceedings cannot proceed against the petitioner. The question is, whether the certificate proceedings should be quashed or whether the income-tax department and the Certificate Officer should be restrained from further proceeding until an assessment order is passed again by virtue of the order made under section 27 of the Indian Income-tax Act, 1922. Mr. Sen, learned counsel for the revenue, contended that under sub-section (3) of section 225 of the Income-tax Act, 1961, a certificate could be kept in abeyance and after an appropriate order of assessment was again passed the certificate could be amended or modified accordingly. I am, however, unable to accept that position. Under section 220 of the Indian Income-tax Act, an assessee can only be in default when he fails to pay the sum due from him after an appropriate notice of demand was given pursuant to a valid order of assessment. It is up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply therewith and the Income-tax Officer may proceed to assess the total income of the deceased person as if such executor, administrator or other legal representative were the assessee. (3) Where a person dies, without having furnished a return which he has been required to furnish under the provisions of section 22, or having furnished a return which the Income-tax Officer has reason to believe to be incorrect or incomplete, the Income-tax Officer may make an assessment of the total income of such person and determine the tax payable by him on the basis of such assessment, and for this purpose may, by the issue of the appropriate notice which would have had to be served upon the deceased person had he survived, require from the executor, administrator or other legal representative of the deceased person any accounts, documents, or other evidence which he might under the provisions of sections 22 and 23 have required from the deceased person. " Mr. Dutta in this connection drew may attention to the provisions of section 159 of the Income-tax Act, 1961, and, according to him, the difference in-language between the two sections signified that, in case an assessee died after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut serving a fresh notice under section 148 of the Income-tax Act, 1961. As mentioned hereinbefore I am unable to accept his contention because by sub-section (3) of section 24B a situation is dealt with where a person dies without furnishing a return which he is required to furnish under the provisions of section 22. Section 34(1A) provides that notice might be served containing all or any of the requirements which may be included in section 22 of the Income-tax Act, 1922. So under a notice under section, 34(1A) requirements of the provisions of section 22 are included. It is true that the return under section 34 is a return filed pursuant to a notice under section 34. But, it is also true that it is the return which the assessee is required to file not under section 22, but " under the provisions of section 22 ". The effect of the requirement of section 22 in a notice under section 34(1A) has been explained by the Supreme Court in the case of K. S. Rashid Son v. Income-tax Officer. The Supreme Court observed that it was true that section 34(1) used the clause " as if the notice were a notice issued under that sub-section " and section 34(1A) did not ; but the two provisions wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moon Mills Ltd. the decision of the Bombay Court in the case of B. M. Desai v. Ramamurthy, Income-tax Officer, Bombay, the decision of the Supreme Court in the case of Commissioner of Income-tax v. Manilal Dhanji, and the decision of the Bombay High Court in the case of Bai Hiradevi v. Official Assignee, Bombay, in support of the proposition that strict construction in a case like this should be made and such construction should be one which was favourable to the assessee. It is true that strict construction should be made but in the facts and circumstances of this case, in the view I have taken of the language used under section 34(1A) of the Indian Income-tax Act, 1922, it is not necessary for me to discuss the aforesaid decisions in detail. There is, however, another aspect of the matter. On the question of the assessment an appeal has been preferred, and the remedies by the Income-tax Act have been availed of by the petitioners. It further appears that the assessment was made on the heirs on the 4th October, 1958, in respect of the assessment year 1945-46. Therefore, if the point was taken at that time that no fresh assessment could be made without serving a notice under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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