TMI Blog1979 (9) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the income of the deceased and the income received after death could be clubbed in the income received prior to death and one assessment could be made of such income? " The facts of the case, in brief, are as follows : The assessment relates to the assessment year 1969-70, the previous year being the financial year 1968-69. The assessee was Ramnarayan Kakani who died on November 20, 1968. He was a broker. The legal representative of the deceased filed two returns, one up to the death disclosing an income of Rs. 30,380 and another return from November 21, 1968, to March 31, 1969, declaring an income of Rs. 15,613. The ITO applied the provisions of s. 159(1) of the Act and held that the amount of Rs. 15,613 was assessable in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the present case on the ground that no executor has been named in the will and the legal representative, Dr. Raghunath, received the amount of brokerage after the death of the deceased in his capacity as the legal representative of the assessee. He submitted that the Tribunal lost sight of the Explanation to s. 168 of the Act which provides that : " In this section, ' executor ' includes an administrator or other person administering the estate of a deceased person. " He submitted that as Dr. Raghunath was granted probate by a competent court and that he was otherwise administering the estate of the deceased person, he was an executor and the provisions of s. 168 of the Act were attracted to the present case. According to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased ; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative ; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee... " This section provides that where a person dies his legal representative shall be liable to pay any 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. This section f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act and on that basis contended that in the instant case provisions of s. 168 are attracted. The history of legislation is relevant only when the language of the section is ambiguous and capable of two meanings. In our opinion, the language of the provisions of s. 168 of the Act and s. 159 of the Act are clear and unambiguous and, therefore, the history of the legislation is not relevant. In our opinion, s. 159 and s. 168 of the Act operate in different fields. Section 159 of the Act is concerned with the income of the deceased while s. 168 of the Act is attracted only in certain circumstances in regard to the income of the estate of the deceased. In our opinion, the arrears of brokerage payable to the deceased but received after h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the estate of the deceased. It was, therefore, held that on the language of s. 168 of the Act the arrears of fees realised after the death of the deceased cannot be said to be the income of the estate and, therefore, cannot be brought to charge under s. 168 of the Act. Thus, if the arrears of brokerage due to the deceased and realised by Dr. Raghunath after the death of the deceased cannot constitute income of the estate of the deceased and it would partake the character of the estate of the deceased, the provisions of s. 168 of the Act are not attracted, and the same could not be assessed under the provisions of the said section. In this view of the matter, the facts whether M. Raghunath was appointed as an executor by the deceased or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the death of the deceased no agricultural income or arrears of agricultural income due to the deceased was realised by the legal representatives. Thus, this case is not helpful for the determination of the question whether the arrears of brokerage due to the deceased and realised by Dr.Raghunath was income of the estate of the deceased. On the view which we have taken that the arrears of brokerage due to the deceased and realised by Dr. Raghunath is not the income of the estate of the deceased, and s. 168 of the Act is not applicable, the income of the deceased received up to his death and the income due to the deceased and realised by Dr. Raghunath after his death and up to the end of the previous year has to be clubbed and assessed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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