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Asit Kumar Ghose Vs. Commissioner of Agricultural Income-tax, West Bengal. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberReference No. 4 of 1952
Reported in[1952]22ITR177(Cal)
AppellantAsit Kumar Ghose
RespondentCommissioner of Agricultural Income-tax, West Bengal.
Cases ReferredMaharajadhiraj of Darbhanga v. Commissioner of Income
Excerpt:
- chakravartti, j. - the proceeding which has led to this reference gave rise to an important and attractive question of law, but unfortunately it suffered such drastic pruning at the hands of the tribunal in the course of their editing of it that it has reached this court only in a very attenuated and even misleading form. the parties, however, agreed that the question might be reframed in order that its real basis and meaning might be brought out.the facts are as follows :- one akshoy kumar ghose died in october, 1931, leaving a will under which three persons were to be executors and trustees. of them two obtained a probate of the will and took upon themselves the administration of the estate. in may, 1933, one asit kumar ghose, who is the assessee before us, was adopted to the testator......
Judgment:

CHAKRAVARTTI, J. - The proceeding which has led to this Reference gave rise to an important and attractive question of law, but unfortunately it suffered such drastic pruning at the hands of the Tribunal in the course of their editing of it that it has reached this Court only in a very attenuated and even misleading form. The parties, however, agreed that the question might be reframed in order that its real basis and meaning might be brought out.

The facts are as follows :- One Akshoy Kumar Ghose died in October, 1931, leaving a will under which three persons were to be executors and trustees. Of them two obtained a probate of the will and took upon themselves the administration of the estate. In May, 1933, one Asit Kumar Ghose, who is the assessee before us, was adopted to the testator. In 1947 Asit Kumar brought a suit against the executors on the Original Side of this Court for administration of the estate and accounts and in that suit he was appointed receiver by an order made on the August 12, 1948. He took possession of the estate on the August 32 next and it is found by the Tribunal that all the assets of the estate were handed over to him, except that the executors were allowed to retain with them the account books and a sum of Rs. 5,000 on account of certain costs and expenses.

In the meantime, in December, 1946, a proceeding under the Bengal Agricultural Income-tax Act had been commenced against the executors in respect of the agricultural income of the estate for the accounting year 1352 B.S. for which the corresponding assessment year was 1946-47. Before Asit Kumar took over the possession of the estate, the executors had already filed a return upon the service of a notice under Section 24(2) of the Act upon them. At the date he took over possession, the assessment proceeding was still pending. Even after that date, notices under Sections 24(4) and 25(2) of the Act were issued to the executors in ignorance, it is said, of the appointment of Asit Kumar as receiver. However when subsequently the Income-tax Officer came to know of the appointment, he issued fresh notices under Sections 24(4) and 25(2) on Asit Kumar in the dual capacity of 'receiver and beneficiary to the estate of late Akshoy Kumar Ghosh'. Asit Kumar responded to those notices and it appears that at his in-period. Ultimately on the August 24, 1949, an assessment under Section 25(3) of the Act was made on Asit Kumar in the dual capacity to which I have already referred. Hereafter I shall refer to Asit Kumar as the assessee.

It was in his appeal to the Assistant Commissioner that the assessee first raised the objection which has given rise to this reference. It was contended on his behalf that the assessment made on him was wholly invalid, inasmuch as it was the executors and not he who had received the income assessed and inasmuch as he not being the person to whom the preliminary notice under Section 24(2) had been issued and who had filed the return, the subsequent notices served upon him and the assessment made on their basis were unauthorised by the Act. The Assistant Commissioner rejected that contention and so did the Appellate Tribunal on further appeal.

It is perfectly clear that the objection of the assessee was of a two-fold character, one branch relating to the substantive question of his liability for the tax and the other relating to the procedural regularity of the assessment. The Tribunal in its appellate order dealt with both, although in a somewhat confused manner, and more by reference to certain so-called general principles of taxation than to the terms of the Sections to which they referred. In substance, they held that the initiation of the proceedings against the executors was valid under Section 13(b) of the Act which provided for the assessment of receivers and administrators who received income on behalf of another person. The ultimate assessment of the assessee was valid under Section 16(2) which made the beneficiary, on whose behalf the income was received by another person, equally liable to assessment. The substitution of the assessee for the executors was valid, because he was a successor in office and therefore, in law, the same person. The whole assessment proceeding was in order, because it was the income of the estate of Akshoy Kumar Ghose which was being assessed and because under the Income-tax laws taxable income could be validly assessed wherever it was found. In the present case, it was found in the hands of the assessee, because at the time when the assets of the estate were handed over to him, he 'must have got the agricultural income in question' among other assets. The Tribunal further observed that if in a case where an executor was succeeded by a receiver or one receiver was succeeded by another, could be no substitution of the successor in the assessment proceedings, the Income-tax Officer would have to start afresh each time a change occurred and it might well be that in certain cases the income would escape assessment altogether, the bar of limitation intervening.

I have tried to set out the reasoning of the Tribunal as clearly as I could, although it lies buried under a mass of statements of general principles and some high flown language. There is not the slightest discussion of the terms of any of the Sections relied on.

After the decision of the Tribunal, the assessee made an application for a reference to this Court of four questions of law, between which he distributed his contentions. The Commissioner of Agricultural Income-tax admitted that a question of law arose and he formulated a single question of his own. The Tribunal did not approve of the form of the questions formulated by the parties and framed a question of their own in the following terms :-

'Whether on the facts and in the circumstances of the case the assessment which was started with a notice under Section 24(2) on the executors but completed with notices under Sections 24(4) and 25(2) on the receiver was valid and sustainable by -law.'

It would seem from the question, as framed, that the only matter in controversy between the parties was the validity of serving the initial notice on one person and making the assessment on another. The question of the substantive liability for the tax is entirely left aside and the opinion of this Court is asked on a fraction and the less material fraction on the point in issue. Both parties agreed that such was the effect of the question as framed. Dr. Pal, however, contended that if the words of the question were read along with the basis on which the notices had been issued, probably the entire controversy might be taken as comprised within the qestion. I do not consider it proper to proceed on the question as framed and import into it considerations which are outside its words. In my view, it will be better to reframe the question formulated by the Commissioner of Agricultural Income-tax with slight modifications. The parties agree that the question might be reframed in that form.

The question so reframed will read as follows :-

'On the facts and in the circumstances of the case, whether the assessment on the receiver upon service upon him of notices under Section 24(4) and Section 25(2) was valid and sustainable in law when the return was filed and the income in question was, in the first instance, received by the executors on whom also all the notices had been served in the first instance, received by the executors on whom also all the notices had been served in the first instance.'

In my opinion, as to every one of the grounds given by the Tribunal in support of their decision, they are wrong. To begin with Section 13(b), it is surprising to find that that Section could be thought to have any application to the facts of the case. Like Sections 40 and 41 of the Indian Income-tax Act, Section 13(b) of the Bengal Act does not mention executors at all and that for the obvious reason that it is concerned with the assessment of persons like guardians, trustees, agents, receivers and administrators who receive income on behalf of another person such as the word, the cestui que trust, the principal, the rightful owner and the beneficiary. An executor, on the other hand, as is now well settled, does not, while the administration is still incomplete, hold the estate or receive its income on behalf of any one else, but does so on behalf of himself as the person in whom the estate lies vested at the time. Even if the executor and the trustee be the same person, he does not assume the latter character till the administration has been completed and the residuary legacy ascertained and assented to. Till then, he is liable to be assessed not in a representative capacity under the special Sections of the Income-tax Act, but under the general provisions as the owner of the income : (Lord Sudely v. The Attorney-General, Dr. Barnardos Homes National Incorporated Association v. Commissioners for Special Purposes of the Income Tax Acts and V. M. Raghavalu Naidu and Sons v. Commissioner of Income-tax & Excess Profits Tax, Madras). It is interesting to find that the position of these very executors came to be considered in two assessments under the Income-tax Act : (Seej P. C. Mullick and Another v. Commissioner of Income-tax, Bengal, and In re P. C. Mullick and D. C. Aich). In the former of them of them the very point was raised before the Judicial Committee. It was suggested that the assessment on the executors should be treated as being not an assessment upon them in regard to income belonging to themselves, but as an assessment in their capacity of trustees for the residuary beneficiary, that is to say, the present assessee. In repelling that contention, Lord Russell of Killowen observed that there was no evidence that at the relevant time the estate had been cleared and that the executor had come to hold it simply as a trustee. Precisely the same is the position in the present case. In 1352, when the income in question was received, the estate had not been cleared and the executors had not come to hold it as trustees. There could thus be no question of assessing the executors in the present case in respect of the income of 1352 B.S. in a representative capacity under Section 13(b) of the Act.

There is a further reason why Section 13(b) cannot possibly apply. I have already pointed out that the Section does not mention executors. The Tribunal, however, referred to the executors in the present case as administrators and made an attempt to bring them into the Section through that word. It is important to notice, however, that the administrator contemplated by Section 13(b) is an administrator appointed by or under the order of a court. The executors in the present case were merely executors appointed by the will and they had not been appointed administrators by any court. That, in my view, is an additional reason why they cannot be brought under-Section 13(b) at all.

I need hardly point out that the assessment of the assessee himself cannot be held to have been a valid assessment under Section 13(b). It is true that that sub-Section mentions a receiver. It is also true that the assessee is a receiver and was appointed a receiver by an order of the court. But the primary requirement of the Section is that the person contemplated by it must be a person who had received the agricultural come on which he is to be assessed. It cannot possibly be said that the assessee received the income of the year 1352 B.S. as receiver, because in that year, which corresponds to 1945-46, he had not become a receiver at all. Apart from the question, therefore, as to whether he actually received the income in 1352 B.S. or at any time, he certainly did not receive it in 1352 as receiver and that circumstance is sufficient to exclude Section 13(b) in his case.

Proceeding now to the second finding of the Tribunal that the assessment of the assessee was authorised by Section 16(2) of the Act, it is, in my opinion, equally erroneous. That Section provides that nothing contained in Sections 13 and 14 shall prevent either direct assessment of a person therein referred to on whose behalf the agricultural income is received or the recovery from such person of the agricultural income-tax payable in respect of such income. Both Sections 13 and 14 contemplate assessment of persons who receive income on behalf of another and it is in respect of income so received that the other person, on whose behalf the income is received, is made equally liable to assessment. As I have already pointed out, the income of 1352 B.S. was not received by the executors in the present case on behalf of the assessee or of anybody else. There could thus be no question of levying direct assessment on the assessee in respect of that income under Section 16(2) of the Act.

The Tribunal justified the change-over of the assessment proceedings from the executors to the assessee by saying that he was their successor in office. The argument was reinforced by saying that it was the income of the estate of Akshoy Kumar Ghose that was being assessed. With regard to that argument, it need only be pointed out that the Income-tax Act does not contain any provision corresponding to Order XXII of the Code of Civil Procedure for substitution in cases of succession or devolution of interest where the assessee is an individual. Nor is it of any help or accurate to say that what was being sought to be assessed was the income of the estate of Akshoy Kumar Ghose, although in one sense the executors may be said to have been the representatives of the testator Akshoy Kumar Ghose and to have been holding the estate in his right. Still, in law, the income that was being assessed was their own income, as I have already explained. Besides, taxation of income must be taxation of the income of some person who received it and it cannot, in my view, possibly be said that the estate of Akshoy Kumar Ghose is a person within the meaning of the Bengal Agricultural Income-tax Act, so that that income can properly be assessed in hands of the manager of he estate, whoever such manager may be, in the capacity of either an executor or a receiver. In may opinion, the reasoning of the Tribunal in this part of the case is equally erroneous.

I have already pointed out that the assessment of the assessee was also in his capacity of a beneficiary. The Tribunal appear to have thought that at least such assessment was valid, because he was the sole beneficiary on his own showing and he received the income in question, as it must have come to him along with the other assets of the estate. In my view there are several fallacies in this reasoning. It is not clear whether the Tribunal were thinking of a direct assessment of the assessee as a beneficiary under Section 16(2) or a direct assessment on the footing that the himself had received the income. But I may point out first that although the assessee described himself as the sole beneficiary, in fact he was not so and what he must have meant was that he was the sole residuary beneficiary. He gave the same description of himself in the case under the Indian Income-tax Act which went up to Privy Council, but that description did nut Present their Lords ships from referring to the terms of the will and Pointing out that there were several other beneficiaries. But even if the assessee was the sole beneficiary, he would not be liable to be assessed directly under Section 16(2) unless the income had been received on his behalf by the executors and, as I have already explained, the income was not so received, because the legacy of the assessee had not, at the relevant date, been ascertained and assented to. As regards the other possible basis of the Tribunals finding, namely that he assessee actually received the income, I can no foundation for it. It is difficult to see how it can be said that when the assets of the estate were handed over to the assessee in 1948, he must have received among such assets, the agricultural income of the estate derived in 1945. The executors may have spent off that income on other purposes or may have withheld it or may even have misappropriated it. In any event, even if the amount in question came to the hands of the assessee in 1948 as a part of the funds of the estate as they stood in that year, such receipt cannot possibly be said to be a receipt of the agricultural income from the land concerned in the year 1352 B.S. within the meaning of the Act. In my opinion, the direct assessment of the assessee is not justifiable either under Section 16(2) or otherwise.

In my opinion, the initiation of the proceedings against the executors was valid, no for the reason that they had received the income in a representative capacity on behalf of the assessee, but for the reason that they had received it themselves on their own behalf. The proceeding so commenced ought to have been concluded as a proceeding as against the executors. By such conclusion and the consequential demand for the tax, no hardship would have been caused to the executors if they would only consult their rights under the Act and retain the money necessary for the payment of the act and retain the money necessary for the payment of the tax under the authority of Section 62. In my opinion the presence of that Section removes many difficulties. If an executor or a receiver receives the income of the estate and thereafter, when an assessment proceeding is pending against him, he is removed from office, the Act provides him with the means for getting the necessary funds for payment of the tax. The Department also can complete the proceeding against him and need not be embarrassed by any necessity to commence a fresh proceeding against every new incumbent, because the proceeding commenced against the person who actually received the income can be validly completed as against him and such person is placed by the Act in a position to pay the tax out of the estate. For the reasons given above, I am of opinion that the observation made by the Tribunal that the contention of the assessee would be 'demolished at the first touch of Section 13, read with Section 16(2)' is entirely misconceived.

It remains now to deal with the second branch of the contention of the assessee regarding the validity of the notices served upon him. Dr. Pal conceded that since the assessee had complied with those notices, he could be regarded as having adopted the return filed by the executors and thus to have become the person who had filed the return within the meaning of Sections 24 and 25 of the Act. I find difficult, even on that concession, to hold on the facts of the present case that the issue of the notice under Section 25(2) on the assessee after he had complied with the notice issued under Section 24(4) was valid. The whole basis of Dr. Pals concession was that the assessee was placed under an obligation to file a return of this agricultural income as soon as the general notice under Section 24(1) was published, and if not having filed the return at the time, he subsequently intervened in the proceedings commenced on the return filed by the executors, he might be treated as having discharged his obligation to file a return by adopting the return filed by the executors. Under Section 24(3), a return can be filed at any time before the assessment is made. But the general notice under Section 24(1) requires only those persons to file a voluntary return who had received a taxable amount of agricultural income in the year in question. If in the present case the assessee himself had received no agricultural income, taxable or otherwise, in 1352 B.S. clearly the general notice under Section 24(1) did not affect him and it placed him under no obligation to file any return. It appears to me that so far as the present proceedings were concerned the assessee was a stranger to them and the notices served upon him, whatever his own conduct might have been, were unauthorised.

For the reasons given above, the answer to the question referred must, in my opinion, be in the negative.

The assessee is entitled to the costs of this Reference.

BACHAWAT, J. - I agree that the question should be resettled as stated by my Lord. It is necessary to resettle the question in order to bring out the real issues in this case.

The main contention of Dr. Pal is that Asit Kumar Ghose never received the agricultural income during the accounting year either as receiver or as beneficiary either directly or though P. C. Mullick or D. C. Aich.

Mullick and Aich were appointed both trustees and executors under the will of Akshoy Kumar Ghose and Asit Kumar Ghose is the sole residuary legatee under that will. To avoid a fresh reference both parties have relied on the material provisions of this will which are set out in the reports in P. C. Mullick v. Commissioner of Income-tax, Bengal, and In re P. C. Mullick & D. C. Aich.

It is contended by Mr. Sen that Asit Kumar must be held to have received the income during the accounting year and is chargeable to the agricultural income-tax. It is contended that when Mullick and Aich received the income as executors and trustees they must be deemed to have received it on behalf of Asit Kumar.

Let me first examine the position of Mullick and Aich as executors. Qua executors, they are the representatives of the deceased for all purposes and all his property vests in them as such. It is to be noticed that the executor is not made chargeable to income-tax by the special charging Sections 13 and 14 of the Bengal Agricultural Income-tax Act. None the less as the income of the estate is received by him he is chargeable under the general charging Sections 6 and 7 of the Act. He holds the estate and receives the income as the representative of the deceased. The income is received by him and applies the income for the purposes of the will, he applies the income received by him and not by the beneficiaries. 'It is simply a case in which' observed Lord Russell of Killowen in P. C. Mullick v. Commissioner of Income-tax, at p. 209, 'the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directors of their testator, in whose shoes they stand.'

Asit Kumar as the sole residuary legatee under the will of the deceased had no vested right to any specific part of the income of the property of the deceased while it was being administered by the executors and he cannot be said to have received such income simply because Mullick and Aich as executors received the income.

It is said that Mullick and Aich had become trustees under the will of Akshoy Kumar Ghose during the accounting year and therefore Asit was entitled to and must be deemed to have received the income during that year. Where a person is appointed both executor and trustee of the estate of the deceased under the will of the deceased he does not hold any part of the estate as a trustee as long as he holds it as an executor and representative of the deceased. His assent to the legacy divests his title to the property bequeathed and if he is also a trustee under the will thenceforth he holds it as such trustee : George Attenborough & Son v. Solomon; Halsburys Laws of England, Edition 2, Vol. 14, Article 646. With regard to the residuary legacy the residue to which he can give assent must be ascertained. Until the administration is completed the residue is not ascertained and cannot be said to exist. Until then he holds the estate as an executor and not as a trustee for the residurary legatee. The matter is put thus by Sir Lancelot Sanderson in the case of The Secretary of State for India in Council v. Sm. Parijat Debi :-

'It is clear on the authorities that the legatee of a share in a residue has no interest in any of the property of the testator until the residue is ascertained. His right is to have the estate properly administered and applied for his benefit when the administration is complete : see Barnardos Homes v. Income Tax Special Commissioners.'

This case must be decided on the footing that Mullick and Aich did not cease to function as executors during the accounting year. The statement of case and the question referred proceed upon the footing that they were acting as executors during that year and that the notice under Section 24(2) of the Bengal Agricultural Income-tax Act was served on them in their capacity as executors. There is no clear statement on the record that in 1945-46 they were clothed with the character of trustees. The materials on the record rather indicate that during that year the administration of the estate had been completed and that Mullick and Aich had not ceased to function as executors. A suit for administration of the estate of the deceased was then pending and a preliminary decree for administration was passed on the August 12, 1948. That decree directed an account of the legacies given by the will and in what manner and to what extent the same were payable and what provision should be made for the payment thereof. This suggests that all the legacies had not been paid even in 1948. On the materials on the record, Mullick and Aich cannot be said to have become trustees of the estate of the deceased for the benefit of Asit and Asit had no vested right in any part of the income during the accounting year. Until the administration is complete, Asit as residuary legatee, has no interest in any specific property left by the deceased.

Much reliance was placed by counsel for the Commissioner of Income-tax upon Sections 13, 14 and 16(2) of the Bengal Act. He contended that Mullick and Aich were chargeable under Sections 13 and 14 and that as Mullick and Aich received the income by virtue of Section 16(2) Asit must also be deemed to have received that income during the accounting year. In my view Mullick and Aich were not chargeable to tax under Sections 13 and 14 at all. During the accounting year Mullick and Aich were functioning as executors and they could not be said to be 'administrators appointed by or under any order of any court.' For reasons already stated they had not become trustees at all during that year. Even assuming that they had clothed themselves with character of trustees under the will of Akshoy Kumar Ghose, they were not trustees of 'a minor, lunatic, idiot or person residing without Bengal' nor were they trustees appointed under a duly executed trust deed.' A trustee under a will cannot be said to be a trustee appointed under trust deed. A will is a testamentary instrument and speaks from the death of the testator whereas a deed is a nontestamentary instrument and speaks from the date of its execution. The corresponding Section 41 of the Indian Income-tax Act was amended by Section 22 of the Amending Act XXIII of 1941 so as to make it applicable to trustees 'appointed under a trust declared by duly executed instrument in writing whether testamentary or otherwise.' The Bengal Legislature deliberately drafted Section 14 of the Bengal Agricultural Income-tax Act so as to make it conform to Section 41 of the Indian Act before its amendment in 1941. It has been held in Income-tax Appellate Tribunal, Bombay v. Managing Trustee, Sri Radha Madho Trust and Income-tax Commissioner v. Venkatachellam that Section 41 of the Indian Act before its amendment in 1941 did not apply to testamentary trusts. I respectfully agree with this view.

Further, Sections 16(2), 13 and 14, by themselves, do not make the beneficiaries liable to direct assessment. Section 13 and 14 permit the tax to be levied and recovered from trustees etc. Section 16(2) emphasizes that Section 13 and 14 are permissive and that nothing therein prevent the direct assessment of and the recovery of the tax from the person on whose behalf the income is received. The person on whose behalf the income is received is chargeable under the general charging Sections. A beneficiary per se is not chargeable to tax. If must be shown that the income is received on his behalf. In this case it cannot be said that Asit Kumar as beneficiary during the accounting year received the income of any part of the estate or any part thereof either directly or through P. C. Mullick and D. C. Aich.

It is next contended that since Asit was appointed receiver he is chargeable under Section 13(b). The relevant part of that Section reads thus :-

'Where any person receives any agricultural income derived from land...as a receiver...any agricultural income-tax payable under this Act on such income shall be levied upon and recoverable from such...receiver...'

Asit had not been appointed receiver during the accounting year and therefore it cannot be said that he received the income as a receiver in that year.

It is said that Asit got possession of the estate and therefore must have received the income when he got such possession. This contention assumes that the income is represented by some property or asset which has come into the possession of Asit. But this has not been found as a fact. Assuming that in 1948 Asit has got possession of some property or assets into which the income of 1945-46 has been converted it cannot be said that he received the income as receiver in 1945-46.

I, therefore, hold that Asit did not revieve any agricultural income during the accounting year as a beneficiary or as receive either directly or through P. C. Mullick or D. C. Aich. Asit is therefore not chargeable to tax either under Section 5 and 6 or under Section 13(b) of the Agricultural Income-tax Act.

Dr. Pals next contention is that the assessment is bad because Asit never filed the return. The return was filed by the executors and the assessment proceedings were started against them. Dr. Pal contends that on his appointment as receiver Asit could not be substituted in place of the executors in the pending assessment proceedings and the proceedings could not be continued against him. Upon the assumption that Mullick and Aich were 'administrators' the Appellate Tribunal seems to be of the view that the word 'administrator' in Section 13(b) did not exclude his successor in office. Relying on Williams v. Singer they thought that there was some general principle to this effect that the State can obtain its share of the income 'by the simple and effective expedient of taxing the profits where they are found.' In my view the Appellate Tribunal throughout was in error. Subject to constitutional restrictions the State can tax its citizens by positive enactment. The tax is levied by and under the statute and not by and under some supposed general principle. The statute alone can show with whom the profits are found for the purpose of taxation. Mullick and Aich were not administrators nor is Asit their successor in office. The machinery of taxation is to be found within the taxing statute and not outside it. Order XXII of the Code of Civil Procedure does not apply to assessment proceedings under the Income-tax Acts. Except where there is a specific provision in the Income-tax Act the assessment proceedings started against one person cannot be continued against another. Section 27 of the Bengal Act corresponding to Section 24(b) of the Indian Income-tax Act provides an instance where this can be done. Under that Section an assessment proceeding started against a person in certain cases can be continued after his death against his representative. It is to be observed that Section 24(B) of the Indian Income-tax Act was enacted in September 1933. Before this Section was enacted it was held in the case of Ellis C. Reid, Administrator in Indian of the Estate of Sir Henry Proctor v. Commissioner of Income-tax, Bombay, that if the assessee after having filed the return died pending the assessment proceedings the proceedings the proceedings could not be continued after his death and it was conceded before the Judicial Committee in Maharajadhiraj of Darbhanga v. Commissioner of Income-tax, that in the ordinary way the representative of the deceased could not be fixed with tax in respect of the income received by the deceased before his death. The property of the deceased no doubt vested in the representative but it could not be said that the profits were found with the representative. In the absence of any specific provision the representative could not be continued against the representative 'by the simple and effective expedient of taxing the profits where they are found.' It is conceded that there is no specific provision in the Bengal Agricultural Income-tax Act by which the proceedings started against the executor can be continued against the receiver. It follows therefore that on his appointment as receiver Asit could not be 'substituted' in place of the executors against whom the proceedings were pending.

If the position were that Asit received the income and was assessment able for that during the accounting period, it would have been his duty voluntarily to file the return under Section 24(1) of the Bengal Agricultural Income-tax Act. In such a case it may be that if he voluntarily appeared in the assessment proceedings and proceeded on the footing that the return previously filed by another person was his own he might be assessed as if he had filed the return. The assessment then would be on the basis that he had filed tge return and not on the basis that he could be substituted in the assessment proceedings on the analogy of Order XXII of the Code of Civil Procedure. But the position here is fundamentally different. Asit never received the income and was never liable to pay it. There are special provisions such as Sections 26 and 28 of the Bengal Agricultural Income-tax Act which make the executor, the reconstituted firm and the successor of a business liable for tax though they have not received it. There is no special provision in the Bengal Agricultural Income-tax Act whereby a receiver appointed in respect of any estate in the possession of the executor may be assessed in respect of the income received by the executor. The estate of the deceased as such is not assessed to income-tax. The Appellate Tribunal was in error in thinking that the estate of the deceased was the assessee. In Income-tax law the estate of the deceased as such is not a separate juristic entity or a corporation sole represented from time to time by managers and receivers. Asit Kumer, as receiver, was therefore not liable to be assessed in respect of the income in question. For the purpose of the statue the income of the accounting year was never found with him so as to make him chargeable to taxation. His intervention in the assessment proceedings does not make the income of the executors his income.

The question must therefore be answered in the negative as stated by my Lord.


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