9911796707
TMI Blog1972 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... 967 is Miss Sunita Sabharwal, minor daughter of H. L. Sabharwal. Section 24 of the Finance (No. 2) Act, 1965, provided for voluntary disclosure of income on conditions mentioned therein, by a person who had failed to furnish return or which had not been disclosed in the return of income on or before the 19th day of August, 1965. The income so declared was to be liable to tax at the rates specified in sub-section (3) of section 24, but was exempt from all other penalties, etc., otherwise provided by law in terms of this section. On March 30, 1966, a declaration disclosing an income of Rs. 10,000 was filed by the mother of the minor petitioner in the name of the minor but under her own signatures. It was returned by the Income-tax Officer on April 26, 1966, with the following endorsement : " Returned to the declarant (in original) as invalid since the declaration has not been signed by the natural guardian of the minor who alone is competent in law to sign on the minor's behalf. " On September 17, 1966, the father of the petitioner made a representation to the Commissioner of Income-tax stating that as he was out of station and had given general instructions to his wife to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before the 1st day of April, 1964, for which he had failed to furnish a return within the time allowed by the two Acts or had failed to disclose in the return of income filed by him on or before the 19th August, 1965, under either of the two Acts or which had escaped assessment by reason of the omission or failure on the part of such person to make a return under either of the said Acts or to disclose fully and truly all material facts necessary for assessment, he shall, notwithstanding anything contained in the two Acts, be liable to pay income-tax in accordance with sub-section (3) of this section in respect of the amount so declared. Sub-section (3) specified the rates at which the income-tax had to be paid. The declaration envisaged in this section is in the nature of return of income provided for in section 139 of the Income-tax Act, 1961. The provision as to who could sign and verify the return is contained in section 140 of this Act. Clause (a) of section 140 provided for the case of an individual. Clause (b) related to the Hindu undivided family and clauses (c), (d) and (e) provided for a company, a firm and any other association. Clause (f) then read as under : " In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the father was no more in existence or capable to act. Section 11 of the Hindu Minority and Guardianship Act also provides that, after the commencement of this Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being de facto guardian of the minor. This makes the position further clear. The mother, even if she be a de facto guardian, is incompetent to deal with the property of the minor in the presence of the father. The filing of the declaration on behalf of the minor entailed consequences of the disclosed income of the minor being taxed in accordance with sub-section (3) of section 24 of the Finance (No. 2) Act, 1965. The de facto guardian had no authority to deal with the income, which was the property of the minor, to expose it to this risk. Such a guardian in fact has no legal existence qua the minor in the eye of law in relation to the property of the minor in face of the clear provision in section 11 of the Act. This is also borne out on a reference to the definition of " guardian " in section 4(b) of the Act which makes no mention of the de facto guardian in any maner qualifying section 11, even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, my attention was not drawn to any other provision in this Act, making the Code of Civil Procedure applicable to it. The next friend or guardian for purposes of a suit can in fact be any person appointed by the court and not necessarily guardians enumerated in section 4 of the Hindu Minority and Guardianship Act, 1956. That is a special provision made for purposes of the suits. The guardian appointed in the suit does not become a guardian of the minor for all other purposes. The powers of a person appointed by the court as next friend of minor are limited to the legal proceedings in which the appointment is made and do not extend beyond it. Reference to Order 32 and the observations made in Girdhari Lohar's case in the context of this provision are, therefore, of no assistance to the learned counsel. The learned counsel then said that no specific provision had been made in the Income-tax Act, 1961, nor was there any indication in section 24 of the Finance (No. 2) Act, 1965, as to who was to sign the declaration or file the return on behalf of the minor and the mother as a de facto guardian of the minor could, therefore, not be excluded to act on behalf of her ward. As stated ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detected or deemed to have been detected income comprised in the declaration. To say that an invalid declaration could be validated by ratification after the expiry of these thirty days would be to render nugatory the provisions of this sub-section. It is difficult for this reason to accept the argument that ratification after the expiry of thirty days could make the declaration valid. The letter of the petitioner's father dated September 17, 1966, therefore, is of no avail in the instant case. The learned counsel, lastly, contended that the filing of the declaration by the mother was not a " dealing with the property of the minor " and as such provisions of section 11 of the Hindu Minority and Guardianship Act did not come into play. The submission is wholly devoid of merit. The sum of Rs. 10,000 belonging to the minor referred to in the declaration was the property held by the minor. By making the declaration under section 24 of the Finance (No. 2) Act, 1965, in respect of it this amount was sought to be made liable to tax in accordance with sub-section (3) of this section which provided the rates at which the tax had to be paid on the declared income. The sum of Rs. 10,000 he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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