TMI Blog1976 (11) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e Gundu Hafiz Mohammed Yousuff of Valathoor. The said Gundu Hafiz Mohammed Yousuff was deriving share income from three firms and he died on January 21, 1956. For the three assessment years, namely, 1950-51, 1951-52 and 1953-54, assessments were made by issue of notices to Rahima Bi, wife of Gundu Hafiz Mohammed Yousuff, the assessee, treating her as the legal representative of her deceased husband. She filed returns for the assessment years 1950-51 and 1951-52. The assessments were completed. On February 19, 1959, S. A. Samad, son by another wife of the deceased, stated that Rahima Bi was not the only legal heir and that he and his sister by the first wife of the deceased were also heirs. The assessment for 1953-54 was completed under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner upheld the assessments in the view that Rahima Bi was the de facto guardian and that the notice served on her could be treated as proper notice served on the minors. The assessee took up the matter in further appeal to the Tribunal and contended that Rahima Bi was not the guardian of the minor children and, therefore, the minor children had not been properly impleaded and that the finding of the Appellate Assistant Commissioner that Rahima Bi was the de facto guardian and, therefore, she could be treated as the de facto guardian so as to give her the right to represent the minors in tax proceedings was wrong. On the other hand, the contention on behalf of the department was that section 24B(2) notices were issued to all the minors t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer could proceed to make the assessments only after issuing notices to all the legal representatives of the deceased. It is not the case of the Income-tax Officer that after he made bona fide enquiries he came to the conclusion that Rahima Bi was the only legal representative of the deceased. The Income-tax Officer was fully aware of the fact that Rahima Bi had minor children and that they were also the legal representatives of the deceased. Consequently, the only question for consideration is as to how the notices under section 34 were to be served on the minor children, who were also the legal representatives of the deceased. It is settled law, as far as Mohamedan law is concerned, that only the father or father's father a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the Income-tax Officer bona fide thought that the mother could represent her minor children as a guardian cannot in any way affect the legal position that she is not the de jure guardian of her minor children. Under these circumstances , the contention of the assessee before the Tribunal, as accepted by the Tribunal, namely, that there was no proper service of the notice on the minors represented by the de jure guardian according to the personal law applicable to them, was correct. In this connection, the Tribunal itself has relied on a decision of this court by Srinivasan J. in Ravith Bibi v. Agricultural Income-tax Officer [1964] 52 ITR 471 (Mad). That was a case of an assessment of a minor to agricultural income-tax under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case. Nothing was brought to our notice to hold that the principles laid down by this court in the judgment referred to above cannot be applied to the proceedings under the Income-tax Act. The only decision to which our attention was drawn by the learned counsel for the department is that of the Supreme Court in First Additional Income-tax Officer v. Mrs. Susheela Sadanandan [1965] 57 ITR 168, 174 (SC). In that case the Supreme Court did not decide the question finally, but remanded the matter to the High Court to come to a definite conclusion on certain points which the Supreme Court itself formulated. All that the Supreme Court could be said to have done in that case was to quote with approval an extract from an earlier judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance to the department in the present case. The question which has been referred to this court and which we have extracted already will show that the contention of the revenue is that the Tribunal ought not to have set aside the entire assessment. As a matter of fact, that was also the argument addressed to us. The argument is that the assessments may be bad so far as the minors are concerned, but they were valid so far as the major legal representatives are concerned on whom notices were served. We are not able to conceive of the assessments being good in part and bad in part. The assessments in question were with reference to the years when the deceased was alive. On the death of the deceased, all his heirs simultaneously succeeded to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
