TMI Blog1978 (3) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been obtained and administration of the estate was also not completed during the relevant year. In an appeal preferred from the assessment before the AAC it was contended that the assessment was not valid because the same had been made on the legal representatives of the deceased as also on the executors to the estate. This contention was rejected by the AAC. The assessee preferred a further appeal before the Tribunal. It was contended that the assessment should have been made only on the executors and not on both the legal representatives and the executors. The Tribunal held that the assessments were made on the legal representatives as well as the executors out of abundant caution and no illegality had been committed thereby. At the instance of the assessee, the Tribunal has drawn up a statement of case and has referred the following questions : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that there was no illegality in the assessment as framed by the Income-tax Officer. " "2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the capital losses suffered by lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the 10th May, 1948, the Administrator-General of West Bengal was appointed Administrator-de-bonis-non of the estate, and submitted returns of income of the estate for the assessment years 1950-51 and 1951-52, the accounting years being 1949-50 and 1950-51. The question arose whether the Administrator-General represented himself in the assessments or whether he represented the various beneficiaries having different shares in the estate. The Supreme Court held that as the administration of the estate had not been completed the Administrator-General received the income of the estate on his own behalf and not on behalf of the beneficiaries. Mr. Suhas Sen, learned counsel for the revenue, has contended on the other hand that the assessment had been made in the hands of the representative-assessees and it did not matter if the legal representatives were included in the assessment along with the executors. He drew our attention to the provisions of Chap. XV of the I. T. Act, 1961, and submitted that persons and bodies referred to therein, namely, legal representatives, guardians, agents of foreign principals and non-residents, executors, successors to a business, liquidators and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess the total income as if the said legal representatives were the assessee. The Supreme Court held that if a person died executing a will appointing more than one executor or died intestate leaving behind him more than one heir, the ITO could proceed to assess the total income of the deceased against all the executors or the legal representatives, as the case may be. On the facts, the Supreme Court noted that three executors had been appointed in the will which was not probated. Under s. 13 of the General Clauses Act any of the executors could represent the estate of the deceased. As to an unprobated will the Supreme Court quoted with approval Williams on Executors and Administrators, 14th edn., Vol. 1, p. 58, as follows : " Where an executor is appointed by a will, he derives title from the will, and the property of the deceased vests in him from the moment of the testator's death, so that probate is said to have relation to the time of the testator's death. Thus, though he cannot rely on his title in any court without production of probate, probate is merely operating as the authenticated evidence of the executor's title." The Supreme Court noted the definition of a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two persons have been joined in the assessment as legal representatives. Section 2(29) of the I.T. Act, 1961, defines "legal representatives" as follows; " 'Legal representative' has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908 (V of 1908)." Section 2(11) of the Code of Civil Procedure, 1908, defines "legal representative" as follows: "2. (11) 'Legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." Section 211 of the Indian Succession Act, 1925, inter alia, provides as follows: " The executor or administrator, as the case may be, of a deceased person, is his legal representative for all purposes, and all the property of the deceased person vests in him as such." In the instant case, the executors having been appointed in the will legally represent the estate of the deceased. It is found further that the administration of the estate is not complete and, therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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