TMI Blog1961 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... see " used in sections 45 and 46, and so construing limited the word " assessee " in those two sections to an assessee proper. The words " other person " cannot apply to a legal representative, if he is an " assessee " by fiction, and the fiction has to be worked out to its logical conclusion. If he falls within the word " assessee ", as has been shown above, he does not fall within the words " other person ", and it is not necessary to find in this case what persons are there meant to be included. In our opinion, the penalty could be imposed on the respondent as an assessee. Appeal allowed. - C.A. 282 OF 1960 - - - Dated:- 20-10-1961 - Judge(s) : S. K. DAS., J. L. KAPUR., M. HIDAYATULLAH JUDGMENT The judgment of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held in his favour, and quashed the two orders imposing penalty, but granted a certificate of fitness to appeal to this court. This appeal was then filed. In reaching the conclusion that section 46(1) of the Act did not apply to a legal representative, the learned judges of the High Court held that a legal representative could not be said to be included within the words of that sub-section when an assessee is in default in making a payment of income-tax because of the scheme of the Act, particularly section 29, where a distinction is made between an assessee and other person . According to the learned judges, a legal representative is assessed as an assessee under a fiction in section 24B(2), and that fiction comes to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 24B. (1) Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge the tax assessed as payable by such person, or any tax which would have been payable by him under this Act if he had not died. (2) Where a person dies before the publication of the notice referred to in sub-section (1) of section 22 or before he is served with a notice under sub-section (2) of section 22 or section 34, as the case may be, his executor, administrator or other legal representative shall, on the serving of the notice under sub-section (2) of section 22 or under section 34, as the case may be, comply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax which might have been assessed but not paid by the deceased person or which might be assessed after his death. It covers all situations and contingencies, and makes the liability absolute, limited, however, to the extent to which the estate of the deceased is capable of meeting the charge. The sub-section does not provide for issue of notices, assessment, collection or anything connected with the imposition, levy and collection of the tax. Sub-sections (2) and (3) next provide for different contingencies. Sub-section (2) provides that where a person dies before the publication of a general notice or before he is served with a special notice under section 22 or section 34 his legal representative shall on the service of the special n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the department. The answer to this question would determine, the further application of the other sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not. The original assessee being dead before the notice, either general or special, to him, he could not be treated as an assessee, and the process of the Act is, by the fiction, made available against a different person like a legal representative, who is fictionally deemed to be an assessee, for purposes of assessment. The word assessment bears different meanings, and, in one sense, it comprehends the entire process of computation and levy of the tax. It is in this sense that the legal representative be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in default, a penalty can be imposed. All these stages the respondent went through in this case. He was himself an assessee qua the assets and liability to tax of Ebenezer ; he was, therefore, an assessee in default and liable to the imposition of penalty for this default. The question is whether section 29, which makes a distinction between an assessee and other person , makes any difference. The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of section 29 where, in addition to an assessee liable to pay the tax, occur the words other person liable to pay such tax, and observed that the respondent would fall to be governed by the words ..... X X X X Extracts X X X X X X X X Extracts X X X X
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