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TMI Blog1971 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ce deceased, on account of income-tax. The petitioner is the widow and a heir and legal representative of one Subodh Kumar Bose (hereinafter referred to as "the deceased"). The deceased died on May 19, 1963, having published his last will and testament whereby the deceased appointed the petitioner as his sole executrix. Application for grant of probate of the said will has been made by the petitioner in the Court of the District Judge, 24-Parganas, at Alipore; the said application is still pending. The deceased was a barrister practising mainly at the High Court at Calcutta. At the time of his death a considerable amount was due and owing by different solicitors and clients to the deceased on account of professional services rendered by him. At the time of his death assessment of income-tax of the deceased for the assessment years 1962-63, 1963-64 and 1964-65 up to the date of his death were completed by the Income-tax Officer, "C" Ward, District III(I), and an aggregate sum of Rs. 1,54,598.29 was assessed to be the income-tax payable by the deceased for the said years. The tax for the year 1964-65 was, however, subsequently revised and reduced to Rs. 80,899 and total income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 1 was not willing to grant any time to the petitioner. According to the petitioner there was no material whatsoever to enable the Income-tax Officer, the respondent No. 1, to believe that the income of the deceased for the assessment year 1965-66 had escaped assessment. At no point of time during the said year the deceased was alive. Therefore, there could not be any escapement of income of the deceased from tax for the assessment year 1965-66. Hence, the instant application to strike down the impugned notices and for the reliefs mentioned above has been made by the petitioner. The reason for starting proceedings under section 147 of the Income-tax Act of 1961, was not disclosed by the Income-tax Officer in the affidavit affirmed by him on April 10, 1970, the first affidavit filed in opposition to the petition. The revenue realised an aggregate sum of Rs. 1,09,625 from the law and professional clients of the deceased on diverse dates between 3rd March, 1965, and 14th May, 1966. The particulars of such realisation including dates thereof have been set out in paragraph 6 of the petition. On the basis of the petition it appears that a sum of Rs. 62,193 was realised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63, was not alive even during the year previous to the assessment year 1965-66. Thus, the deceased did not receive any money nor earned any income by carrying on his profession during the previous year. The deceased maintained his account on cash basis. The money received by the revenue under section 226 of the new Act in March, 1965, were arrears of fees payable to the deceased on account of professional work rendered by the deceased. Therefore, according to Dr. Pal, the ratio decidendi in Nalinikant Ambalal Mody v. S. A. L. Narayan Rao, Commissioner of Income-tax applies on all fours to the instant case and the said sum of Rs. 85,998 was not liable to be assessed to income-tax. A taxing statute must be construed strictly. If the legal personality of the deceased does not extend to the year previous to the assessment year 1965-66, his legal representative was not liable to file any return. Dr. Pal relied on Commissioner of Income-tax v. Amarchand N. Shroff. Dr. Pal supported his contentions by placing sections 2(15), 2(29), 2(45), 5, 6, 10, 14, 28, 56, 159 and 176(4) of the new Act and all the corresponding sections of the old Act, namely, sections 2(15), 4, 6, 10 and 65. Dr. Pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court that the various heads of income mentioned in section 6 of the old Act were mutually exclusive and thus the said income could not be brought under the residuary head, i.e., section 6(v). The Supreme Court in the said case observed that the said receipt although would be income and included in the total income under section 4 of the old Act, the Act did not provide for taxation on whatever was included in the total income under section 4. Section 4 did not deal with chargeability of tax and was not the charging section. Section 3 was the charging section under the old Act, but income had to be brought under one of the heads specified in section 6 and would be charged to tax only if it was chargeable under the computing section in respect of that head. Such income which was under consideration of the Supreme Court in the said case was held could not be brought to taxation under the corresponding computing section, i.e., section 10 under the head specified in section 6(iv). Section 10 of the old Act applied to and attracted only the profits and gains of any business, profession or vocation which was carried on by the assessee during the year previous to the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me from other sources", mentioned in clause F of the said section 14, under the express provision of section 56(1) of the new Act. Thus under the new Act money received by a person on account of profits or gains of a profession which had been discontinued by him even prior to the year previous to that when he received the same would be chargeable to tax under the provisions of the new Act mentioned above. If Subodh Kumar Bose were alive, he would have been liable for income-tax chargeable on the sum of Rs. 85,998 realised by the revenue by means of proceedings under section 224 of the new Act. Will the death of Subodh Kumar Bose make any difference? In the instant case this money realised by the revenue by way of garnishee proceedings from the debtors of the deceased cannot be assessed as profits or gains from profession or vocation carried on by the assessee during the "previous year". In view of section 28(1) of the new Act, this income cannot be brought under any of the heads enumerated in clauses A to E of section 14 of the new Act. But in view of specific provisions of section 56 of the new Act, this income would be chargeable to tax under the head "income from other sources ..... X X X X Extracts X X X X X X X X Extracts X X X X
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