TMI Blog1981 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased prior to his death during the accounting year in question?" The material facts giving rise to the present reference are these: The relevant assessment year is 1974-75. The accounting year for the assessment year is the year ending on 31st March, 1974. One R. C. jail, who was an assessee, died on 17th December, 1973, that is, during the accounting year in question. . Two separate assessments were made for this accounting year in question: one regarding the income for the period April 1, 1973, to. December 17, 1973, that is up to the death of late Shri R. C. jail in the status of an individual; second, for the period December 15, 1973, to March 31, 1974, which is the period relevant for consideration. The assessees are the exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent entity; it set aside this view of the authorities below, but held that whether in their assessment the assessees were entitled to the set-off would depend on the finding whether the several conditions enumerated in s. 72 of the Act are fulfilled or not. With these observations, the Tribunal partly allowed the appeal. The learned counsel for the department submitted that on the death of the, assessee there are two distinct provisions in the Act regarding the assessment of his income, one s. 159 and the other s. 168. He submitted that for the same accounting year in which the deceased died up to the date of death s. 159 applies and for the remaining period of the accounting year s. 168 applies and that the assessment is made in two d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the year of death should be made on the executors till the administration of the estate is completed " Is. 168(3)]. The argument of the learned counsel for the assessee in counter was that the executors are also the legal representatives of the deceased, s. 159 and s. 168 are merely machinery sections, the ultimate burden of the tax assessed is on the estate of the deceased, when the assessment is made following the mechanism provided under s. 159 of the Act and also when the assessment is made following the mechanism provided in s. 168 of the Act. He argued that both the sections provide the mechanism for assessment on the legal representatives of the deceased. He argued that in such a setting of the legal position the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased " ; and then s. 159(6) of the Act says : " the liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability. It would be pertinent here to point out that the word " estate " in s. 159(6) of the Act includes income accruing after death from the corpus left by the deceased. This is the view taken by the Allahabad High Court in Ram Lakhan v. ITO [1963] 47 ITR 311. It may be mentioned that s. 24B of the Indian I.T. Act, 1922, corresponded to s. 159 of the present Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act for the purposes of the Act, the executor shall be deemed to be resident or non-resident according as the deceased person was resident or non-resident during the previous year in which his death took place. Here, we would recall s. 169 of the Act by virtue of which the executor is equated to a representative assessee to attract the applicability of s. 162 of the Act which gives the right to a representative assessee to recover the tax paid as already discussed in para. 12 of this order. Thus, s. 161 (1) of the Act, which contains general provisions relating to a representative assessee has also a material bearing on the question to be answered. This s. 161 of the Act says that although the representative assessee shall be subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative in respect of the income which accrued to or was received by the deceased. Section 168 of the Act authorises an assessment on the legal representative in respect of the income which accrues to him after the death, the estate being vested in him. Though the assessment is of the executor or executors, as the case may be, for all practical purposes, it is the assessment of the deceased. It is pertinent to recall the expression in s. 168(1) that " the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor ". An executor or executors, as the case may be, who is accountable for the assessment to the I.T. authorities for payment of income-tax, does not pay such tax out of his personal property. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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