TMI Blog1978 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... come for the assessment year 1961-62. Notices under section 143(2) and 142(1) of the Act were issued to Sri Sajjan Kumar Saraf as the legal representative of the late Shri B. L. Saraf. For the assessment year 1959-60 also an ex parte assessment was raised against the deceased on 3rd of March, 1962. Against this ex parte order, Shri Sajjan Kumar Saraf filed a petition under section 27 of the Indian Income-tax Act, 1972, as the legal representative of the deceased on 23rd April, 1962. We are concerned in this reference with the assessment for the assessment year 1961-62 and the same was completed on a total income of Rs. 95,495 on 21st March, 1966. At this stage, no question as to the liability of Shri Sajjan Kumar Saraf as a legal representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Tribunal, the assessment for the assessment year 1961-62 was set aside directing the Income-tax Officer to make a fresh assessment in accordance with law and after impleading all the legal representatives of the deceased. In the premises under section 256(2) of the Income-tax Act, 1961, as directed by the High Court, the following two questions have been referred to this court : " 1. Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the assessment should be sent back to the Income-tax Officer for fresh assessment after bringing all the legal representatives on record ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause or motive, if a return otherwise valid or filed by an assessee before receipt of a valid notice under section 34, it was to be treated as a return within section 22(3) for it would fall within the language of that sub-section, A return under section 22(3) must be filed before the time mentioned in section 34(3) of the Indian Income-tax Act, 1922. There, what happened was, for the assessment year 1944-45, the assessee, a Hindu undivided family, had not filed any return. On April 3, 1948, the Income-tax Officer issued a notice under section 34 of the Indian Income-tax Act, 1922, for which he had not obtained the sanction of the Commissioner of Income-tax. Pursuant to that notice, the assessee filed a return on September 4, 1948, showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Member of the Tribunal has noted, the Income-tax Officer could have found out by a little enquiry whether there were other legal representatives of the deceased. Therefore, the assessment should be made upon notice of such other legal representatives. This was precisely what the Tribunal has directed the Income-tax Officer to do. This procedure in our opinion, is in consonance with the views indicated by the High Court in the case of Chooharmal Wadhuram v. Commissioner of Income-tax [ 1971] 80 ITR 360. Counsel for the assessee drew our attention to the observations in the case of Shaikh Abdul Kadar v. Income-tax Officer [1958] 34 ITR 451 (MP), Commissioner of lncome-tax v. Amarchand N. Shroff [1963] 48 ITR 59 (SC) and Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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