9911796707
TMI Blog1964 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's death, discovered that there was a large scale evasion of tax by the assessee and on that ground on March 20, 1954, issued notices under section 34 of the Income-tax Act, 1922, hereinafter called the Act, and they were addressed to " Late S. P. Sadanandan by his legal heirs E. D. Sadanandan and others, Kozhikode ". Pursuant to the notices a return was submitted in due course and the name of the assessee in the return was as " Late S. P. Sadanandan by the legal heirs E. D. Sadanandan and others ". The return was signed by E. D. Sadanandan as the legal heir and his status was given as " individual ". On August 17, 1954, the Income-tax Officer, Coimbatore, made an order of reassessment for the said years and in the said order the assessee was described as " Late S. P. Sadanandan represented by legal heirs and legal representatives Sri E. D. Sadanandan and J. G. Sadanandan and others, Kozhikode ". In the first paragraph of the assessment order the Income-tax Officer noted : " The assessee in this case is Shri S. P. Sadanandan, who died on July 10, 1948. After his death he is represented by his sons, namely, E. D. Sadanandan and J. G. Sadanandan, and the assessee's wife, Mrs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated and omitted to be stated in the affidavit, no right to relief was disclosed and, therefore, the High Court should have dismissed the petition in limine ; (3) either on the basis of the existence of a will or on the basis of intestacy, the notices served on E. D. Sadanandan on behalf of all the legal representatives of late S. P. Sadanandan were sufficient to sustain the assessment against the estate of S. P. Sadanandan ; and (4) in any view, the order of assessment would be effective against E. D. Sadanandan, and the order of the High Court couched in very wide language should be clarified so as to confine it only to the claim of the 1st respondent. The first point was not raised before the High Court. Nor are there any merits in the said contention. The complaint of the 1st respondent was that under the colour of an order of assessment to which she was not a party, her property was being attached and sought to be sold under a coercive process. To state it differently, she alleged that the State threatened to infringe her fundamental right under article 19(1)(f) of the Constitution and, therefore, sought the help of the High Court to issue an appropriate writ to protect he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors or the legal representatives, as the case may be. The question, therefore, is whether the Income-tax Officer proceeded to reassess the total income of the deceased against all his legal representatives. Unfortunately in the context of this question neither the affidavits filed by the parties before the High Court nor the material placed before it disclose the crucial facts necessary for giving a definite answer to the said question. It is not disputed that S. P. Sadanandan died executing a will. Under that will three persons were appointed as executors, namely, his widow, Mrs. Suseela Sadanandan, who is the 1st respondent, his eldest son, E. D. Sadanandan, and one Paramasivan, a registered accountant and auditor of Kozhikode. The will also shows that S. P. Sadanandan had another minor son, two minor daughters and a minor grandson through another predeceased daughter. Under the will the properties of the deceased vested in the said executors who were directed to administer the estate as per the terms of the will. It is admitted that the said will was not probated. Under section 211 of the Indian Succession Act the executor of a deceased person is his legal representative for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of them administered the estate of a deceased without obtaining the probate, all of them or some of them who have administered the estate may be held to be the legal representatives of the deceased and liable to the extent of the property taken possession of by them. If it had been established that E. D. Sadanandan had alone been managing the entire estate, the court could have come to the conclusion that he was the legal representative of the deceased and, therefore, represented the estate in the assessment proceedings. But, unfortunately, as we have already indicated, no serious attempt was made by the parties to establish before the High Court by placing before it the necessary material that all or some of the executors, though they did not obtain probate of the will, had intermeddled with the estate wholly or in part. There is also a large body of authority holding that if a party bona fide impleaded one of the legal representatives as representing the estate of a deceased party and the said representative represented the estate, the decree obtained therein is binding on the other legal representatives of the deceased. It is unnecessary to survey the wide field of decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other executors and heirs. This again is a question of fact to be decided on relevant evidence. Even if the will was ignored, the question whether the Income-tax Officer acted bona fide and whether the estate was properly and effectively represented by one or other of the legal representatives of the deceased still remains to be considered. Lastly, even if some of the legal representatives were not served, the question arises whether the assessment order made against the estate represented by E. D. Sadanandan would continue to be effective against that part of the estate in his possession or management : or to put it in other words, what would be the effect of the non-service of notice on some of the legal representatives on the enforceability of the assessment order against that part of the estate in the possession and management of E. D. Sadanandan. Before us learned counsel on both sides advanced arguments on hypothetical and alternative basis. Except the affidavit filed by the Income-tax Officer, which is vague to the extreme, and that filed by the respondent, which is equally unhelpful, no material has been placed before us. The records of the income-tax proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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