TMI Blog1978 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... son of Matrumal Goenka and Krishna Debi Goenka. According to the plaintiff on 4th June, 1953, Keshab Prasad Goenka opened an account with the defendant No. 3 at its branch at No. 3 Netaji Subhas Road, Calcutta, and diverse sums of money were deposited in the said account even after his death. According to the plaintiff in the first place the said deposits belonged to Smt. Krishna Debi Goenka who died on February 15, 1955, leaving the plaintiff as the widow of her pre-deceased son and as her only heir and legal representative. The case of the plaintiff is that she acquired a Hindu widow's estate in respect of the said sum of Rs. 93,611.69 (sic) and after June, 1956, after passing of the Hindu Succession Act, she became the absolute owner thereof. She has also made an alternative case that the moneys so deposited in the account of Keshab Prasad Goenka belonged to Keshab Prasad Goenka personally who died intestate on 24th February, 1954, leaving him surviving the plaintiff as his sole heir and legal representative and in respect of those properties she acquired a Hindu widow's estate. Even after the death of Keshab Prasad Goenka diverse sums of money have been deposited in the said ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account was opened on 4th June, 1953, by Keshab Prasad Goenka and he was the son and heir of Gouri Shankar Goenka but the defendants Nos. 1 and 2 have denied that the said money ever belonged to Krishna Debi Goenka. These defendants have also denied that the plaintiff is the son of Krishna Debi Goenka or that he has become entitled to receive the said sum of Rs.93,611.69 (sic). In paragraph 4 of the written statement the defendants Nos. 1 and 2 have pleaded specifically that this money did not belong to Keshab Prasad Goenka nor do they admit that the plaintiff is the sole heir and legal representative of Keshab Prasad Goenka. They have denied that on the death of Keshab Prasad Goenka the plaintiff has become the absolute owner of the said sum of money. According to these defendants, the money which was deposited in bank belonged to Gouri Shankar Goenka who was a partner of a firm named Messrs. Sadhuram Tolaram and withdrawals from the said firm the nucleus of the said bank account was formed and return from various investments made by the said Gouri Shankar Goenka out of his own money in the name of his mother Smt. Krishna Debi have been deposited in the said account. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 3 of the plaint ? 3. Was Keshab Prasad Goenka personally liable to pay the said sum as legal heir and representative ? 4. Is the attachment of the said sum wrongful as pleaded in paragraph 8 of the plaint ? 5. Is the suit barred by reason of s. 67 of the I.T. Act, 1922 ? 6. Is the defendant No. 3 discharged from any obligation to pay the money after payment of the same to defendants Nos. 1 and 2 ? 7. To what relief, if any, is the plaintiff entitled ? By consent of the parties, the formal proof of documents as contained in brief of documents marked 1 and 2 was dispensed with. From the various assessment orders it will appear that Gouri Shankar Goenka, since deceased, was liable to pay to the income-tax authorities various sums of money towards his income-tax dues in respect of which certificate proceedings were started. A sum of Rs. 1,46,216 was assessed to be payable by Keshab Prasad Goenka as legal heir and representative of Gouri Shankar Goenka wherefrom Maina Debi, the plaintiff, preferred an appeal and the said certificate proceedings were set aside by the Commissioner of Presidency Division. From the order of the Commissioner it will appear that Gou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various correspondence passed by and between the solicitors of Maina Debi Goenka and the ITO. The defendants Nos. 1 and 2 disclosed the estate duty return filed on behalf of Keshab Prasad Goenka in respect of the estate of Gouri Shankar Goenka. They further relied on two dividend warrants filed by Keshab Prasad Goenka with his income-tax return. The first dividend warrant bearing No. 42 is dated 2nd August, 1947, in respect of 1,300 shares of Sri Radha Krishna Cotton Mills Ltd. From the body of said dividend warrant it will appear that those shares belonged to the said Gouri Shankar Goenka and dividend in respect of the same was declared on 4th May, 1946, when Gouri Shankar was very much alive. On the same dividend warrant under the heading " To be signed by the claimant ", Keshab Prasad Goenka has certified that this dividend was in respect of the shares which were his own property when the said dividend was declared, and he has signed the said dividend warrant. The second dividend warrant bearing No. 43 dated 2nd August, 1947, is in respect of 100 ordinary shares of Sri Radha Krishna Cotton Mills which were lying registered in the name of Keshab Prasad Goenka. The said dividen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Goenka was a very rich man. He has stated that the books of account were maintained in respect of the transaction but at the moment those are mislaid. He has stated in cross-examination made by Mr. Majumdar on behalf of the defendant No.3 that money has been paid by the bank according to I.T. Rules. The defendants Nos. 1 and 2 called one Marinal Kanti Pyne, an ITO, who produced dividend warrants Nos. 42 and 43 both dated 2nd August, 1947, which were filed with the assessment return for the year 1947-48. Mr. Dilip Sen has submitted that in this case first of all the point involved is whether the said sum is attachable or not by the defendants Nos. 1 and 2. The plaintiff has made a case that the money belonged to Krishna Debi and from her it was received by Maina Debi Goenka as her heir and legal representative. On this point he has submitted that the plaintiff has led no evidence whatsoever. The alternative case made by the plaintiff is that this money belonged to Keshab Prasad Goenka and on his death the plaintiff has become entitled to the said sum as a legal heir and representative of Keshab Prasad Goenka. The plaintiff has given oral evidence on this alternative case stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther relied on a case, Kalawati Devi Harlalka v. CIT [1967] 66 ITR 680 (SC), where it has been held that the word "assessment " bears a very comprehensive meaning and it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer. Relying on the cases referred to by Mr. Sen he has further argued that this suit is not maintainable inasmuch as s. 67 of the Indian I. T. Act is a bar. S. 67 of the Indian I. T. Act, 1922, provides : " No suit shall be brought in any civil court to set aside or modify any assessment made under this Act and no prosecution, suit or other proceeding shall lie against any officer of the Government for anything in good faith done or intended to be done under this Act. " According to Mr. Sen, as it has been decided in the cases referred to by him, the word "assessment " must be given a wide meaning to include not only assessment, imposition or levy of taxes but also realisation of the same. As such anybody interested in setting aside or modifying such assessment cannot bring a suit in civil court and challenge the same. Mr. Sen has summed up his argument on the facts that first of all the suit filed by the plaintiff is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of Gouri Shankar Goenka. But without giving any evidence and without discharging the defendants Nos. 1 and 2's onus of proving the said fact Mr. D. K. Sen, appearing on behalf of the defendants Nos. 1 and 2, completely changed his stand at the time of argument and he tried to make out a case that as Keshab Prasad Goenka has inherited some money from Gouri Shankar Goenka as such he is liable to pay the same to the income-tax authorities which, according to Mr. Bhabra, the defendants Nos. 1 and 2 cannot do without first of all not only pleading such case in the written statement but also by not adducing any evidence to that effect. Mr. Bhabra has submitted that the defendants Nos. 1 and 2 have failed to give evidence so far as issue No. 1 is concerned. In the absence of any proof, that issue must be answered in the negative. Mr. Bhabra has further submitted that while cross-examining his witness Mr. Sen never suggested to the said witness that this money belonged to Gouri Shanker Goenka. Mr. Bhabra further submitted that while arguing Mr. Sen did not place any reliance on Exts. Nos. 1, 2, 3 and 4 and he had also submitted that from Exts. Nos. 001 and 002 it does not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of maintainability of suit in a civil court, Maina Debi Goenka first of all is not an assessee (not the case of defendant No. 1 and defendant No. 2 either) and, secondly, she has not filed the present suit either to modify or set aside the assessment. She is a third party and she has filed the present suit to maintain her right to the property and there is no provision in the Act which protects the right of such a third party. According to him, Chapter XIV of the I. T. Act does not provide regarding recovery and none of the cases cited by Mr. Sen is applicable in this case. As such, this court has jurisdiction to try or decide this suit. On issue No. 1 defendants Nos. 1 and 2 have only adduced evidence by proving two dividend warrants and the estate duty return in respect of the estate of Keshab Prasad Goenka. Mr. Sen has tried to argue that from one dividend warrant which was filed along with the return it will appear from the body of the dividend warrant that 1,300 ordinary shares were registered in the name of Gouri Shankar Goenka with Radha Krishna Mills and in the year 1947, the said dividend warrant was issued in respect of 1947. In the year 1947 Gouri Shankar Goenk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hankar Goenka and money also belonged to Gouri Shankar Goenka. When on the contrary there is evidence adduced by the plaintiff by proving the statement of account in respect of the said account lying with the defendant No. 3 as also the pass book, which will show that money belonged to Keshab Prasad Goenka which was opened in the year 1953 and after the death of Keshab Prasad Goenka in 1954 various sums of money have been deposited in the said account in the name of Keshab Prasad Goenka. The plaintiff examined Kashi Prasad Dhanuka whose evidence is that he used to look after the said account and he collected various cheques and cash payments in the money-lending business of Keshab Prasad Goenka and he himself deposited the same in the said account. He has most emphatically denied that this money or any portion thereof lying with the defendant No. 3 ever belonged to Gouri Shankar Goenka. While cross-examining the said witness, Mr. Sen appearing on behalf of the defendants Nos. 1 and 2 never challenged the said fact and he also did not put his case or suggest to the witness that money which was lying with the defendant No. 3 in the name of Keshab Prasad Goenka really belonged to Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l defendants Nos. 1 and 2 did not choose to lead any evidence to that effect nor any suggestion was given to the parties. Only an attempt has been made to commit the dividend warrant along with the estate duty return which had been filed in the estate of Keshab Prasad Goenka. In my opinion that evidence is not enough to discharge the defendants Nos. 1 and 2's onus or burden of proof. As I have already indicated above, the dividend warrants are not clear and it is also not free from doubt as to which of those shares were allowed to be the property of Keshab Prasad Goenka during the lifetime of Gouri Shankar Goenka. In view of that it is difficult to follow that those shares must have been inherited by Keshab Prasad Goenka from Gouri Shankar Goenka on his death. The term " assessee " is wide enough to include his legal representative but under the old I.T. Act the legal representative was liable only to the extent of the property received by him from the deceased person. He could not be made personally liable for the dues of the deceased assessee. Under the new Act the liability is the same save and except that a little deviation has been made in the sense that a legal representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case the suit is not to set aside or modify the assessment but only for a declaration that money which was lying with the defendant No. 3 belongs to the plaintiff and not to Keshab Prasad Goenka as legal representative of Gouri Shankar Goenka. Maina Debi was not a party to the assessment proceedings. She has not been served with any notice under s. 24B of the Indian I.T. Act, 1922. No income-tax was due from Maina Debi. Assessment which was made against Keshab Prasad Goenka was in respect of the estate of Gouri Shankar Goenka, deceased, and as such it was only to the extent of the assets received by Keshab Prasad Goenka from the said Gouri Shankar Goenka. In view of the fact that there is evidence to that effect, Maina Debi cannot be held to be liable to pay or part with the money lying in the account of Keshab Prasad Goenka with the defendant No. 3. There is no evidence whatsoever that Keshab Prasad received any money from Gouri Shankar on his death. By considering the estate duty return and also the two dividend warrants one cannot come conclusively to the fact that 1,300 shares belonged to Gouri Shankar Goenka and on his death it has passed to Keshab Prasad Goenka. From t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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