TMI Blog1961 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 24B, on the income of his father, during those years, by orders dated September 30, 1954, and July 30, 1954, respectively. The arrears of tax, which remained to be paid for those two years, were ₹ 11,803-15-0 and ₹ 8,494 respectively. Appeals were filed against the assessment orders in respect of the three years and the tax liability was reduced as a result of those appeals. The amounts of tax, which remained due and payable were ₹ 7,512-9-0, ₹ 8,941-5-0 and ₹ 8,498 respectively, making a total of ₹ 24,951-14-0. On January 25, 1956, a notice was issued to the petitioner to pay the arrears by January 31, 1956. It is stated in paragraph 10 of the affidavit that the petitioner's father was a partner with his kith and kin in certain firms, who made a request to the Income-tax Officer to adjust the refund due to them, and strike the balance payable by the petitioner's father towards the income-tax dues, but the instructions and the request by the other partners were not accepted by the Income-tax Officer. By the impugned orders dated February 24, 1956, March 7, 1956, and February 15, 1956, penalties of ₹ 2,000, ₹ 3,000 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision undoubtedly supports the submission of learned counsel. This decision was followed in another decision of that court reported in Abdul Kassim v. First Additional Income-tax Officer, Karaikudi [1958] 33 ITR 466 . In this case the principle in Alfred's case (supra) was extended and applied to section 46(2) and it was held that a legal representative was not an assessee within the meaning of that section. The decision in Alfred's case (supra) was also followed by the Kerala High Court in Commissioner of Income-tax v. Abdul Rahiman Sait [1961] 42 ITR 631 . With the utmost respect, however, I do not share the view of the learned judges of the Madras and the Kerala High Courts in these cases. It is well settled that the words assessment and assessee are not used in the same sense throughout the Income-tax Act, and sometimes, not even in the same section in that Act. This was pointed out by the Judicial Committee of the Privy Council in the decision in Commissioner of Income-tax v. Khemchand Ramdas [1938] 6 ITR 414 (PC). The dictum has since been approved by the Supreme Court. Apart from the authority of the highest court, the word assessee as defined in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case it was held that a penalty could be imposed upon a legal representative under section 28 as it could be imposed upon the assessee himself. This was so held upon the terms of section 28. From this it follows that a legal representative is not an assessee merely for the purposes of section 246(2). Reference may be made to a case of the Andhra Pradesh High Court in Rajah Manyam Meenakshamma v. Commissioner of Income-tax [1956] 30 ITR 286 . In this case it was held that a combined reading of section 2(2) and section 24B indicated that legal representative is an assessee as denned in the Act (not merely as mentioned in section 24B) and could file appeals to the Income-tax Appellate Tribunal under section 33 against orders under section 28 or section 31. In Commissioner of Income-tax v. James Anderson [1954] 26 ITR 699 a Bench of the Bombay High Court observed as follows at page 705 of the report: Section 24B casts a liability upon the executor or the administrator to pay tax which the testator would have been liable to pay if he had not done so. But section 24B does not limit the liability of the administrator or the executor only to the cases referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worked out, and the fiction should not be cut down to what is expressly enacted. In this connection reference may be made to the decision of the Court of Appeal in East End Dwellings Company Ltd. v. Finsbury Borough Council [1952] AC 109 in which Lord Asquith observed at page 132 as follows: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs . This statement has been cited with approval by the Supreme Court in the case of State of Bombay v. Pandurang Vinayak Chaphalkar [1953] SCR 773. It may further be stated that the default, by reason of which a penalty was imposed under section 46(1) on the petitioner in this case and the legal representative in the Madras case, was not the default of the deceased in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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