TMI Blog2000 (2) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased person was a resident or non-resident during the previous year in which his death took place. (2) The assessment of an executor under this section shall be made separately from any assessment that may be made on him in respect of his own income. (3) Separate assessments shall be made under this section on the total income of each completed previous year or part thereof as is included in the period from the date of the death to the date of complete distribution to the beneficiaries of the estate according to their several interests. (4) In computing the total income of any previous year under this section, any income of the estate of that previous year distributed to, or applied to the benefit of, any specific legatee of the estate during that previous year shall be excluded ; but the income so excluded shall be included in the total income of the previous year of such specific legatee. Explanation.--- In this section, 'executor' includes an administrator or other person administering the estate of a deceased person." The section deals with the income of the undistributed estate of a deceased person. It is made chargeable to tax in the hands of the executor/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in a building which has been rented out, and deposits in a firm in which he had earlier been a partner. The rental income and the interest were assessed by the Assessing Officer in the hands of each of the heirs, to the extent of their shares. The appellate authority, and the Tribunal held that the assessment had to be made in the hands of the widow of the deceased, Smt. Balammal, who was managing the estate of the deceased, division by metes and bounds not having been effected among the co-owners. While in the case of Dhanalakshmi [1995] 215 ITR 662, a Division Bench of this court held that that decision of the Tribunal was erroneous in law, another Division Bench in the case of P. Visalakshi [1996] 217 ITR 282 (Mad) upheld that view of the Tribunal. When the case of the other sister, Manonmani, came up before yet another Division Bench, the inevitable reference to the Full Bench had to be, and was made. The assessable person under section 168 is the executor. An administrator is also an executor for purpose of this section by virtue of the Explanation. Neither term has been defined in the Act. One has necessarily to look to the Indian Succession Act for ascertaining their me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property of the deceased among the legatees, all administrators do not have such powers, such as an administrator pendente lite. The vesting of the legacies in the legatees requires the consent of the executor where there is one, or of the administrator where one is appointed with powers to distribute the legacies. In the case of wills which are executed at places falling outside those specified in section 57 of the Succession Act, and not relating to immovable property within the areas specified in section 57(a) by persons belonging to the religions specified in section 58 of the Succession Act, it is not essential to obtain probate or letters of administration. In such cases, the estate of the deceased where no executor has been appointed by the testator may for some time be under administration by one of the legatees. A person so administration (sic) from the court cannot be regarded as administrator for the purpose of the Indian Succession Act. Such a person could not have been regarded as administrator for the purpose of section 168 of the Income-tax Act, but for the Explanation to section 168. The reference in the Explanation to ". . . other person administering the es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by law entitled to succeed to the estate which vests in defined shares where there is more than one heir, at the moment of the death of the testator. The "estate" referred to in section 168 is an estate succession to which is governed by a will executed by the deceased income from which is charged to tax under section 168 and is not the estate of a person who dies intestate. After having provided for a separate part for executors in the Chapter dealing with the liability in special cases, and providing therein for the assessment of the executors till the date of complete distribution to the beneficiaries of the estate, and also providing for the exclusion from such assessments of the income distributed to, or applied for, the benefit of any specific legatee of the estate during the relevant previous year, Parliament did not intend to suddenly by the back door as it were enlarge the scope of the provision to take within its fold estates of all deceased persons, irrespective of whether the deceased had died testate or intestate. The Explanation at the end of sub-section (4) is only intended to clarify that irrespective of the nomenclature and irrespective of whether the person ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt observed : "We have noted section 168 and sub-sections (3) and (4) of the Income-tax Act, 1961. Section 168, in our opinion contemplates the distribution of the assets in the case of the administration of an estate by the executor. If the executor or the administrator cannot distribute the assets then sub-sectikn (3) and sub-saction (4) would be inappropriate." An the case of CIT v. Navnitlal Sakarlal [1980] 125 ITR 67, a Division Bench of the Gujarat High Court, speaking through Divan C. J., held that : ". . . the word 'executor' in section 168 means an executor as known under the Indian Succession Act as well as an administrator known under the Indian Succession Act, and what is more, any other person administering the estate of a deceased person is also included in this special definition of the word 'executor' though, under the Indian Succession Act, such other person administering the estate of the deceased would never be referred to either as an 'executor' or as an 'administrator"'. A Division Bench of the Bombay High Court in the case of CIT v. Mrs. Usha D. Shah [1981] 127 ITR 850 speaking through M. N. Chandurkar J. (as he then was) held that the mother of the deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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