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TMI Blog1973 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... who was an assessee under the Agricultural Income-tax Act, 1950, within the jurisdiction of the respondent, the Agricultural Income-tax Officer, Alwaye, filed a return of his total agricultural income for the assessment year 1970-71. In response to a notice issued under section 18(2) of the Act, he produced his books of account before the respondent on June 26, 1970, in support of the return. The accounts appeared to be defective and unacceptable. The respondent issued a notice to the assessee on October 21, 1970, to show cause why his accounts should not be rejected and his income assessed to the best of judgment for the reasons and in the manner stated in the notice. The assessee died intestate on September 26, 1970, leaving three sons as his legal representatives. The petitioner is one of them. The above notice was issued to the assessee, without knowing about his death. The notice was, however, received by the petitioner, who filed an objection to the proposed best judgment assessment. The objection was overruled ; and the respondent, by his order, exhibit P-4, dated October 30, 1970, made an assessment determining the total income to the best of his judgment. The name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The latter section contains a more detailed provision. The law is the same under all these three statutes regarding the procedure for assessment of the legal representative and the extent of his liability for the tax payable on the income of the deceased. The assessment has to be made on the legal representative in accordance with the same procedure as would have been necessary to assess the deceased, if he were alive. In support of the contention that an assessment made against sum of the legal representatives alone without issuing notice to the others is bad under law, reliance is mainly placed on the decision of the Supreme Court in First Additional Income-tax Officer v. Mrs. Suseela Sadanandan. In that case, the assessee died leaving a registered will under which his widow, his eldest son and a third party were appointed executors. The family of the deceased consisted of his widow, two sons, three daughters and a grandson through a deceased daughter. The will had made numerous bequests. After the death of the assessee, the Income-tax Officer issued notices to his eldest son as legal representative of the assessee for assessing his income alleged to have escaped assessment in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding those not brought on record.' " Then the court proceeded to state that the above principle, though laid down in the context of suits and appeals, was one of general application, and that there was no reason why it should not be invoked in the case of assessment proceedings. Ultimately the judgment under appeal was set aside, and the case was remitted to the High Court for fresh disposal after considering the points enumerated therein with the following observation : " We may make it clear that we have not finally expressed any opinion on questions of law or fact that arise in the case. Any observations that we have made on any point are not intended to be our final decision thereon, but only to afford a guide to the High Court to come to its own conclusion thereon. The High Court has liberty to consider all the contentions of the parties without being in any way hampered by our observations." Suseela Sadanandan's case was again heard and disposed of by a Division Bench of this court by judgment dated November 18, 1969. One of the questions considered by the Division Bench was whether, in the case of joint executors, an assessment made without notice to all of them is valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is of a learned single judge, of this court in Income-tax Officer v. Miyya Pillai. In that case, the learned judge followed a Division Bench decision of this court in Suseela Sadanandan v. Additional Income-tax Officer and held that an assessment made without notice to all the legal representatives is illegal and void. But the latter decision has been reversed by the Supreme Court in First Additional Income-tax Officer v. Suseela Sadanandan. Therefore, the decision of the learned single judge cannot be considered as a binding authority. There is real distinction in the matter of representation of the estate of a deceased person between a case where it vests jointly in more than one person as in the case of joint executors or joint administrators, and one where it vests in several persons as tenants-in-common or in separate and definite parts. So long as the estate of a deceased person remains joint, or it vests in more than one person jointly, it can be represented only by all of them jointly. There is no question of any one of them representing part of it, since none of them has any separate interest in it. But if it has vested in several persons in separate shares or par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold good in the light of the statement of law which I have quoted above from the decision of the Supreme Court in Andhra Bank Ltd. v. Srinivasan. The scheme of section 24 of the Agricultural Income-tax Act, 1950, and the corresponding provision in the Income-tax Act, 1961, is to assess the legal representative of the deceased person in respect of his income, and the liability of the legal representative is to pay the tax out of the estate of the deceased person to the extent it is capable of meeting the charge. So if an estate vests jointly in more than one person as legal representatives, an assessment against any one of them would be useless since he alone cannot represent the estate, or any part of it, and he cannot, therefore, be liable for the tax to any extent. On the other hand, if the estate vests in several persons as tenants-in-common or in definite shares, every one of them can be assessed, as he is a legal representative, and he could be liable to the tax to the extent of the estate which he can represent, in other words to the extent of the assets which come to his hands. As pointed out by the Supreme Court in Suseela Sadanandan's case, the term "legal representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces to him. I am unable to subscribe to the position that the assessment would be binding on A, B and C, or any one of them, or that any part of the estate can be proceeded against for the recovery of the tax payable under such an assessment. It is the fundamental principle of our legal system that no proceeding is binding on a person who is not a party to the proceeding either directly or through representation. A can represent B only if A empowers B to represent him, or if the law treats B as the representative of A. If the Income-tax Officer honestly thinks that D is the legal representative of the deceased, instead of A, B and C, D cannot thereby become the representative of A, B or C or of the estate of the deceased under law. An act done bona fide under a mistake may relieve the person who so acts from liability ; but it cannot fasten a third party who has no responsibility for the act with liability. The validity of an assessment made in respect of the income of a deceased person has to be determined solely on a true construction of the relevant statutory provision. In my view, there is no warranty for the proposition that, in a case where the estate of the deceased vests in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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