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Maina Debi Goenka Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1728 of 1960
Judge
Reported in[1978]115ITR423(Cal)
ActsIndian Income Tax Act, 1922 - Sections 24B, 46(5A) and 67; ;Income Tax Act, 1961 - Sections 276(3) and 293
AppellantMaina Debi Goenka
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateBhabra and ;S.K. Kapoor, Advs.
Respondent AdvocateD.K. Sen, ;Prabir Majumdar, Advs. for defendants Nos. 1 and 2 and ;Suresh Majumdar, Adv. for defendant No. 3
Cases Referred(Secretary of State v. Radha Swami Sat Sang
Excerpt:
- padma khastgir, j.1. this suit has been filed by maina debi goenka against the union of india, s. roy, ito, 'l' ward, and central bank of india, respectively, for a declaration .that the plaintiff was and is the owner and as such is entitled to a sum of rs. 94,631.92 which is lying in the account of keshab prasad goenka with the defendant no. 3 at its branch at no. 33, netaji subhas road, calcutta, declaration that the purported notice under section 46(a) of the i.t. act, 1922, issued and served by the defendant no. 1 and/or defendant no. 2 in respect of the said sum in enforcement of an assessment against gouri shankar goenka (deceased), or against keshab prasad goenka (deceased), as an heir of gouri shankar goenka is null and void and not binding on the plaintiff. keshab prasad goenka.....
Judgment:

Padma Khastgir, J.

1. This suit has been filed by Maina Debi Goenka against the Union of India, S. Roy, ITO, 'L' Ward, and Central Bank of India, respectively, for a declaration .that the plaintiff was and is the owner and as such is entitled to a sum of Rs. 94,631.92 which is lying in the account of Keshab Prasad Goenka with the defendant No. 3 at its branch at No. 33, Netaji Subhas Road, Calcutta, declaration that the purported notice under Section 46(A) of the I.T. Act, 1922, issued and served by the defendant No. 1 and/or defendant No. 2 in respect of the said sum in enforcement of an assessment against Gouri Shankar Goenka (deceased), or against Keshab Prasad Goenka (deceased), as an heir of Gouri Shankar Goenka is null and void and not binding on the plaintiff. Keshab Prasad Goenka is the husband of the plaintiff and Gouri Shankar Goenka is the father-in-law of the plaintiff who was the son of Matrumal Goenka and Krishna Debi Goenka. According to the plaintiff on 4th June, 1953, Keshab Prasad Goenka opened an account with the defendant No. 3 at its branch at No. 3 Netaji Subhas Road, Calcutta, and diverse sums of money were deposited in the said account even after his death. According to the plaintiff in the first place the said deposits belonged to Smt Krishna Debi Goenka who died on February 15, 1955, leaving the plaintiff as the widow of her pre-deceased son and as her only heir and legal representative. The case of the plaintiff is that she acquired a Hindu widow's estate in respect of the said sum of Rs. 93,611-6-9 (sic) and after June, 1956, after passing of the Hindu Succession Act, she became the absolute owner thereof. She has also made an alternative case that the moneys so deposited in the account of Keshab Prasad Goenka belonged to Keshab Prasad Goenka personally who died intestate on 24th February, 1954, leaving him surviving the plaintiff as his sole heir and legal representative and in respect of those properties she acquired a Hindu widow's estate. Even after the death of Keshab Prasad Goenka diverse sums of money have been deposited in the said account and after 17th June, 1956, the plaintiff became the absolute owner in respect thereof.

2. On 7th March, 1959, a notice under Section 43 of the Public Demands Recovery Act was served upon the plaintiff as legal representative of Keshab Prasad Goenka for recovery of demand against Keshab Prasad Goenka as heir and legal representative of Gouri Shankar Goenka arising in respect of an assessment made on 26th March, 1952, against Keshab Prasad Goenka, as son and heir of Gouri Shankar Goenka. The plaintiff protested before the Certificate Officer who rejected her objection wherefrom the plaintiff preferred an appeal to the Commissioner of Presidency Division who by an order dated 21st June, 1959, allowed her appeal and set aside the said order. Thereafter, the plaintiff received a copy of a notice under Section 46(5A) issued by, the defendants Nos. 1 and 2 and addressed to the manager of the defendant No. 3 stating that a sum of Rs. 1,40,422.43 was then due from Keshab Prasad Goenka on account of income-tax in respect of Gouri Shankar Goenka and requested the defendant 'No. 3 to pay to the defendant Nos. 1 and 2 which amount is held by the defendant No. 3 for and on account of the plaintiff. In paragraph 7 of the plaint the plaintiff has specifically pleaded that Keshab Prasad Goenka is not personally liable as he has been assessed as heir and legal representative of Gouri Shankar Goenka.

3. According to the plaintiff, Keshab Prasad Goenka as legal heir and representative of Gouri Shankar Goenka never had any interest, right, title to the said sure of Rs. 94,63.92. According to the plaintiff, the said notice is wrongful as the moneys did not belong to Gouri Shankar Goenka or to Keshab Prasad Goenka as his heir and legal representative. The plaintiff has also stated that the said notice was issued mala fide and not in good faith. On 24th December, 1959, the plaintiff served a notice under Section 80 of the Civil Procedure Code upon, the defendants Nos. 1 and 2. Subsequent to the notice the plaintiff was informed that the defendant No. 3 on 8th March, 1960, paid the said sum to the defendant Nos. 1 and 2 in compliance with the notice under Section 46(5A) of the I.T. Act. According to the plaintiff, the payment made by the defendant No. 3 was wrongful.

4. In the written statement filed by and on behalf of the defendants Nos. 1 and 2, the defendants Nos. 1 and 2 have admitted that the said bank account was opened on 4th June, 1953, by Keshab Prasad Goenka and he was the son and heir of Gouri Shankar Goenka but the defendants Nos. 1 and 2 have denied that the said money ever belonged to Krishna Debi Goenka. These defendants have also denied that the plaintiff is the son of Krishna Debi Goenka or that he has become entitled to receive the said sum of Rs. 93,611-6-9 (sic).

5. In paragraph 4 of the written statement the defendants Nos. 1 and 2 have pleaded specifically that this money did not belong to Keshab Prasad Goenka nor do they admit that the plaintiff is the sole heir and legal representative of Keshab Prasad Goenka. They have denied that on the death of Keshab Prasad Goenka the plaintiff has become the absolute owner of the said sum of money. According to these defendants, the money which was deposited in bank belonged to Gouri Shankar Goenka who was a partner of a firm named Messrs. Sadhuram Tolaram and withdrawals from the said firm the nucleus of the said bank account was formed and return from various investments made by the said Gouri Shankar Goenka out of his own money in the name of his mother Smt. Krishna Debi have been deposited in the said account. According to this defendant, the said money belonged to Gouri Shankar Goenka who was an assessee in default. In paragraph 9 it has been specifically pleaded that the said money has been collected by the defendants Nos. 1 and 2 as the same belonged to Gouri Shankar Goenka who was an assessee in default and Keshab Prasad Goenka was liable to pay the same as heir and legal representative of the said Gouri Shankar Goenka. According to these defendants, they have lawfully realised the said sum of Rs. 94,599.92 (sic) from the defendant No. 3.

6. In the written statement filed by the defendant No. 3 it has been stated that on 4th June, 1953, one Keshab Prasad Goenka opened a current account with the defendant at its branch at 33, Netaji Subhas Road, Calcutta. The said account was operated from time to time and a sum of Rs. 94,631.92 was lying to the credit of Keshab Prasad Goenka on 1st January, 1960, In paragraph 4 it has been pleaded that this money was lying to the credit of Keshab Prasad Goenka and after his death in February, 1954, it belonged to persons who were entitled to get the same under the law. Under Section 46(5A) of the I.T. Act a notice dated 20th November, 1959, was served on the defendant No. 3 calling upon the defendant to pay to the said officer the amount due or become due by the defendant No. 3 to the plaintiff in respect of income-tax payable by the said Keshab Prasad Goenka, deceased. On 6th March, I960, the said amount was paid by the defendant No. 3 in compliance with the notice served upon it. According to the defendant No. 3, that payment is a good and sufficient discharge of its liability. Such payment made by the defendant No. 3 cannot be held to be wrongful. As such, according to the defendant No. 3, the plaintiff has no cause of action against the said defendant.

7. After hearing Mr. Bhabra, Barrister-at-law, appearing with Mr. S. K. Kapoor for the plaintiff, Mr. D. K. Sen, Barrister-at-law, with Mr. Prabir Majumdar appearing for the defendants Nos. 1 and 2 and Mr. Suresh Majumdar appearing for the defendant No. 3 and after going through the pleadings and correspondence passed by and between the parties, the following issues were raised:

1. Did the sum of Rs. 93,611-6-9 belong to Gouri Shankar Goenka as claimed in paragraph 6 of the written statement

2. Did the plaintiff become the absolute owner of the said sum of Rs. 93,611-6-9 as claimed in paragraph 3 of the plaint ?

3. Was Keshab Prasad Goenka personally liable to pay the said sum as legal heir and representative ?

4. Is the attachment of the said sum wrongful as pleaded in paragraph 8 of the plaint ?

5. Is the suit barred by reason of Section 67 of the I.T. Act, 1922 ?

6. Is the defendant No. 3 discharged from any obligation to pay the money after payment of the same to defendants Nos. 1 and 2 ?

7. To what relief, if any, is the plaintiff entitled

8. By consent of the parties, the formal proof of documents as contained in brief of documents marked 1 and 2 was dispensed with. From the various assessment orders it will appear that Gouri Shankar Goenka, since deceased, was liable to pay to the income-tax authorities various sums of money towards his income-tax dues in respect of which certificate proceedings were started. A sum of Rs. 1,46,216 was assessed to be payable by Keshab Prasad Goenka as legal heir and representative of Gouri Shankar Goenka wherefrom Maina Debi, the plaintiff, preferred an appeal and the said certificate proceedings were set aside by the Commissioner of Presidency Division.

9. From the order of the Commissioner it will appear that Gouri Shankar Goenka was a person on whose income assessment was made. Gouri Shankar died on 3rd May, 1951, and after his death notice under Section 22(2) was issued on his son, Keshab Prasad Goenka, and as Keshab Prasad defaulted in making the payment as legal heir and representative of Gouri Shankar Goenka, a certificate proceeding was started against him. While the certificate proceeding was pending, Keshab Prasad Goenka died on 24th February, 1954, and a notice under Section 43 of the Public Demands Recovery Act was issued and served on Maina Debi on 7th May, 1959, as legal representative of Keshab Prasad. When she filed an objection the same was rejected. On her appeal the Commissioner, Presidency Division, held that for the dues of Gouri Shankar Goenka under Section 24B of the I.T. Act, Maina. Debi cannot be held liable. The property of Maina Debi can be proceeded with only if she has inherited it from her husband which he, in turn, ought to have received from Gouri Shankar. According to the said order of the Commissioner of Presidenty Division, the said certificate proceedings cannot be proceeded against Maina Debi. As such he set aside the said certificate proceedings. In the notice dated 20th November, 1959, the income-tax department has requested the bank under Section 46(5A) of the Indian I.T. Act to pay them forthwith the amount held by them for and on account of Maina Debi. In the said letter Maina Debi has been described as a taxpayer. The bank notified Maina Debi about the said notice by its letter dated 28th November, 1959. In reply by her letter dated 2nd December, 1959, Maina Debi wrote to the bank stating that the money which was lying to the credit of Keshab Prasad Goenka never formed any part of the estate left by Gouri Shankar Goenka. As such any attachment of the said money is wrongful and illegal. It is the definite case of Maina Debi that the liability of her husband, Keshab Prasad Goenka, in respect of the assessment of Gouri Shankar Goenka is only limited to the extent of the assets of Gouri Shankar Goenka inherited by the said Keshab Prasad Goenka and it is her definite case that the bank account which has been sought to be attached does not form part of the estate of Gouri Shankar Goenka. The Additional Member, Board of Revenue, Mr. N. Roychoudhury set aside the order passed by the Commissioner, Presidency Magistrate in favour of Maina Debi.

10. Thereafter various correspondence passed by and between the solicitors of Maina Debi Goenka and the ITO.

11. The defendants Nos. 1 and 2 disclosed the estate duty return filed on behalf of Keshab Prasad Goenka in respect of the estate of Gouri Shankar Goenka, They further relied on two dividend warrants filed by Keshab Prasad Goenka with his income-tax return. The first dividend warrant bearing No. 42 is dated 2nd August, 1947, in respect of 1,300 shares of Sri Radha Krishna Cotton Mills Ltd. From the body of said dividend warrant it will appear that those shares belonged to the said Gouri Shankar Goenka and dividend in respect of the same was declared on 4th May, 1946, when Gouri Shankar was very much alive. On the same dividend warrant under the heading 'To be signed by the claimant', Keshab Prasad Goenka has certified that this dividend was in respect of the shares which were his own property when the said dividend was declared, and he has signed the said dividend warrant. The second dividend warrant bearing No. 43 dated 2nd August, 1947, is in respect of 100 ordinary shares of Sri Radha Krishna Cotton Mills which were lying registered in the name of Keshab Prasad Goenka. The said dividend was declared on 4th May, 1946, and under the heading 'To be signed by the claimant', Keshab Prasad Goenka put his signature under the certificate that the property of the shares was his own property. In the return filed for the estate duty certain figures have been shown to have been received from various parties and credited with the Central Bank of India since 2nd June, 1954. A total sum of Rs. 91,281-4-0 has been received from various parties on the various dates and deposited in the said account. From those entries it will not show that the said sum has been received by Keshab Prasad Goenka from Gouri Shankar Goenka or on his account. The plaintiff examined one Kashi Prasad Dhanuka. The sum and substance of his evidence is as follows :

The evidence of Kashi Prasad Dhanuka is that he knows both Maina Debi and her husband, Keshab Prasad Goenka, who died in the year 1954 in the month of February. When Keshab Prasad died he left his grand mother, Krishna Debi, his wife, Maina Devi and 3 minor daughters. Keshab Prasad Goenka was the son of Gouri Shankar Goenka who died in the year 1951 in the month of May. He has further given evidence that the account of defendant No. 3 was opened in June, 1953 (and) has also proved the pass book and the statement of accounts in respect of the said account given by the defendant No. 3. His evidence is that Keshab Prasad died intestate. He has given the particulars of various amounts in the said account which according to him he deposited himself in the said account after getting the hundis or return from the parties. He has stated that a sum of Rs. 70,000 was received from Benaras in the name of Keshab Prasad Goenka which came from the Benaras account of Keshab Prasad Goenka which was duly deposited by the deponent in the account with the defendant No. 3. According to him, these amounts represent the money-lending transactions carried on behalf of Keshab Prasad Goenka. In answer to questions Nos. 34, 35 and 36 he has emphatically denied that either this account or any portion of the money which was lying in the said account ever belonged to Gouri Shankar Goenka or that he had any interest of any sort whatsoever in the said account. According to him, on Keshab Prasad's death, Maina Debi is the person interested to get the said sum. Mr. Sen cross-examined this witness. In cross-examination he has stated that Keshab Prasad Goenka was a very rich man. He has stated that the books of account were maintained in respect of the transaction but at the moment those are mislaid. He has stated in cross-examination made by Mr. Majumdar on behalf of the defendant No. 3 that money has been paid by the bank according to I.T. Rules.

12. The defendants Nos. 1 and 2 called one Marinal Kanti Pyne, an 1TO, who produced dividend warrants Nos. 42 and 43 both dated 2nd August, 1947, which were filed with the assessment return for the year 1947-48.

13. Mr. Dilip Sen has submitted that in this case first of all the point involved is whether the said sum is attachable or not by the defendants Nos. 1 and 2. The plaintiff has made a case that the money belonged to Krishna Debi and from her it was received by Maina Debi Goenka as her heir and legal representative. On this point he has submitted that the plaintiff has led no evidence whatsoever. The alternative case made by the plaintiff is that this money belonged to Keshab Prasad Goenka and on his death the plaintiff has become entitled to the said sum as a legal heir and representative of Keshab Prasad Goenka. The plaintiff has given oral. evidence on this alternative case stating that this money belonged to Keshab Prasad Goenka and it never formed any part of the estate of Gouri Shankar Goenka. Mr. Sen has submitted that Keshab Prasad Goenka has actually inherited this sum from his father, Gouri Shankar Goenka and as he has been assessed to income-tax to the tune of Rs. 1,40,000 as a legal heir and representative of Gouri Shankar Goenka and as he has defaulted in paying the said sum, the defendants Nos, 1 and 2 were perfectly justified in attaching the said sum lying with the defendant No. 3. Although no evidence has been given for and on behalf of the defendants Nos. 1 and 2 on the contention that the money lying with the defendant No. 3 was the money received by Keshab Prasad Goenka from Gouri Shankar Goenka, Mr. Sen has submitted that from the estate duty return it would show that Keshab Prasad Goenka has inherited from Gouri Shankar Goenka some shares in Sri Radha Krishna Cotton Mills. As such when he has inherited those shares whose market value has been given as Rs. 3,25,000 he should pay a sum of Rs. 1,40,000 as assessed to income-tax. Mr. Sen has submitted that under Section 24B of the LT. Act,' Keshab Prasad Goenka is liable towards his father's dues to the extent of the property inherited by him. In this respect he has relied on a decision in Addl. ITO v. E. Alfred : [1962]44ITR442(SC) , where it has been held that the legal representative became liable under Section 24B(1) to pay out of the estate of the deceased the tax assessed to the extent to which the estate was capable of meeting a charge and he himself would be deemed to be an assessee. The word 'assessment' bears different meanings and in one sense it comprehends the entire process of computation and the levy of tax and it is in this sense that the legal representative becomes an assessee. The legal representative himself is an assessee qua the assets and liabilities of the deceased.

14. Mr. Sen further relied on a case, Addl. ITO v. T. M. K. Abdul Kasim : [1962]46ITR149(SC) , where it has been held that a legal representative of a deceased against whom proceedings are taken under Section 24B of the I.T. Act, 1922, must be deemed to be an assessee not only for the purpose of assessment but also for the purpose of levy and recovery of tax and, therefore, proceedings under Sections 45, 46(1) and 46(2) of the Act can, therefore, be taken against the legal representative. He has further relied on a case, Kalawati Devi Harlalka v. CIT : [1967]66ITR680(SC) , where it has been held that the word 'assessment' bears a very comprehensive meaning and it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer.

15. Relying on the cases referred to by Mr. Sen he has further argued that this suit is not maintainable inasmuch as Section 67 of the Indian I. T. Act is a bar. S, 67 of the Indian I. T. Act, 1922, provides:

'No suit shall be brought in any civil court to set aside or modify any assessment made under this Act and no prosecution, suit or other proceeding shall He against any officer of the Government for anything in good faith done or intended to be done under this Act.'

16. According to Mr. Sen, as it has been decided in the cases referred to by him, the word 'assessment' must be given a wide meaning to include not only assessment, imposition or levy of taxes but also realisation of the same. As such anybody interested in setting aside or modifying such assessment cannot bring a suit in civil court and challenge the same. Mr. Sen has summed up his argument on the facts that first of all the suit filed by the plaintiff is not maintainable under Section 67 of the Indian I.T. Act, 1922. Secondly, even if it is held to be maintainable, no decree should be passed in favour of the plaintiff as the attachment of the money of Keshab Prasad Goenka by the defendants Nos. 1 and 2 is valid and legal inasmuch as he has inherited properties of Gouri Shankar Goenka. As such he must meet the dues to the extent of the property of Gouri Shankar Goenka in his hands.

17. Mr. Suresh Majumdar appearing on behalf of the defendant No. 3 submitted that according to Section 46(5A) of the Indian I. T. Act, 1922, the defendant No. 3 was bound to make the payment to the defendants Nos. 1 and 2, pursuant to the notice served upon them and payment made in compliance with the said notice constitutes a good and sufficient discharge of liability of the defendant No. 3 to pay the said sum. Until and unless the said payment was made by the defendant No. 3 after service of notice on them, the defendant No. 3 would have been personally liable to the ITO to the extent of the liability of the assessee as also penalties. He further submitted that the defendant-bank gave sufficient time to the plaintiff to get a succession certificate so that money could be paid to her and the defendant No. 3 also gave the plaintiff sufficient time to take steps against the order passed by the ITO. As such the defendant No, 3 has acted bona fide and no decree can be passed against the bank.

18. Mr. Bhabra appearing on behalf of the plaintiff submitted that from the records and oral evidence it will appear that prima facie that this money belonged to Keshab Prasad Goenka. This fact has not been challenged by the defendants Nos. 1 and 2 by cross-examining the plaintiff's witness. On Keshab Prasad's death in the year 1954 the plaintiff became entitled to this amount by way of widow's estate and after the passing of the Hindu Succession Act in 1956 under Section 14 she became absolute owner of the said money. Mr. Bhabra has submitted that in paragraph 5 of the written statement filed on behalf of the defendants Nos. 1 and 2 a definite case has been made that this money in fact belonged to Gouri Shankar Goenka. He has further referred to paragraphs 6 and 9 of the written statement where the defendants Nos. 1 and 2 have specifically stated that this money belonged to Gouri Shanker Goenka and Keshab Prasad Goenka was liable to pay this amount as heir and legal representative of Gouri Shankar Goenka. But without giving any evidence and without discharging the defendants Nos. 1 and 2's onus of proving the said fact Mr. D. K. Sen, appearing on behalf of the defendants Nos. 1 and 2, completely changed his stand at the time of argument and he tried to make out a case that as Keshab Prasad Goenka has inherited some money from Gouri Shankar Goenka as such he is liable to pay the same to the income-tax authorities which, according to Mr. Bhabra, the defendants Nos. 1 and 2 cannot do without first of all not only pleading such case in the written statement but also by not adducing any evidence to that effect. Mr. Bhabra has submitted that the defendants Nos., 1 and 2 have failed to give evidence so far as issue No. 1 is concerned. In the absence of any proof, that issue must be answered in the negative. Mr. Bhabra has further submitted that while cross-examining his witness Mr. Sen never suggested to the said witness that this money belonged to Gouri Shanker Goenka. Mr. Bhabra further submitted that while arguing Mr. Sen did not place any reliance on Exts. Nos. 1, 2, 3 and 4 and he had also submitted that from Exts. Nos. 001 and 002 it does not mention anything about Gouri Shankar Goenka or Keshab Prasad Goenka as heirs and legal representatives of Gouri Shankar Goenka. Regarding the dividend warrants Mr. Bhabra hassubmitted that these were of 1947. When the dividend warrants wereissued Gouri Shankar Goenka was very much alive and Keshab PrasadGoenka in the certificate gives a declaration that he is the owner of theshares and so far as the second dividend warrant is concerned KeshabPrasad Goenka gives a declaration that he is the owner of those shares.From the estate duty return filed in respect of Keshab Prasad Goenka itwill appear that 14,000 shares in respect of Radha Krishna Cotton Millshave been shown as the shares of Keshab Prasad Goenka and from thatreturn it will not appear that the shares belonged to Gouri ShankarGoenka. According to Mr. Bhabra estate duty return and dividendwarrants are the documents disclosed by the defendants Nos. 1 and 2wherefrom it will appear that all the shares have been claimed by KeshabPrasad Goenka as his own shares. As such there is no evidence that thesebelonged to Gouri Shankar Goenka. Mr. Bhabra submits that under Section 24B of the I. T. Act, liability of the heir and legal representative of adeceased-assessee is only to the extent of the property he receives from thedeceased-assessee. Although the series of the Supreme Court decisions holdthat the legal representative is liable to pay the dues of the deceased-assessee, that is only to the extent of the property received by the legalrepresentative from the deceased-assessee. Here in this case the defendantsNos. 1 and 2 have hopelessly failed to adduce any evidence regarding theproperties inherited by Keshab Prasad Goenka as legal heir and representative of Gouri Shankar Goenka. The new section, i.e., Section 159 of the I.T.Act, 1961, makes the legal heirs and representative personally liable forany tax payable by him in his capacity as legal representative if while hisliability for tax remains undischarged he creates a charge on or disposesof or parts with any assets of the estate of the deceased but such liabilitiesshall be limited to the value of the asset so charged, disposed of or partedwith. As such there can be no personal liability of Keshab Prasad Goenka topay the dues of Gouri Shankar Goenka in the absence of evidence that heinherited any property from Gouri Shankar Goenka. On the question ofmaintainability of suit in a civil court, Maina Debi Goenka first of all isnot an assessee (not the case of defendant No. 1 and defendant No. 2either) and, secondly, she has not filed the present suit either to modify orset aside the assessment. She is a third party and she has filed the presentsuit to maintain her right to the property and there is no provision in theAct which protects the right of such a third party. According to him.Chapter XIV of the I.T. Act does not provide regarding recovery andnone of the cases cited by Mr. Sen is applicable in this case. As such, thiscourt has jurisdiction to try or decide this suit.

19. On issue No. 1 defendants Nos. 1 and 2 have only adduced evidence by proving two dividend warrants and the estate duty return in respect of the estate of Keshab Prasad Goenka. Mr. Sen has tried to argue that from one dividend warrant which was filed along with the return it will appear from the body of the dividend warrant that 1,300 ordinary shares were registered in the name of Gouri Shankar Goenka with Radha Krishna Mills and in the year 1947, the said dividend warrant was issued in respect of 1947. In the year 1947 Gouri Shankar Goenka was very much alive. Moreover, those shares were claimed by Keshab Prasad Goenka as his own property and he gave a certificate to that effect and signed thereunder. The other dividend warrants in respect of 100 shares of the said company was registered in the name of Keshab Prasad Goenka and he gave a declaration and a certificate that these shares also belonged to him. These two dividend warrants have been disclosed by the defendants Nos. 1 and 2. Mr. Sen wanted to tender those documents as public documents under Section 74 of the Evidence Act. In that respect he craves reference to a decision in Katikineni Venkata Gopala Narasimha Rama Rao v. Chithuri Venkataramayya, AIR 1940 Mad 768. Mr. Bhabra objected to such documents being tendered. Subsequently, of course, Mr. Bhabra admitted those documents and they were formally marked as exhibits. From the said two dividend warrants it will appear that in the year 1947, 1,300 shares of Howrah Cotton Mills stood in the name of Gouri Shankar Goenka but dividend in respect of the same as also those shares were claimed by Keshab Prasad Goenka as early as in the year 1947, i.e., before the death of Gouri Shankar Goenka, The same shares have been shown in the return filed in the estate of Keshab Prasad Goenka. Mr. Sen has submitted that it should be presumed that those shares which were belonging to Gouri Shankar Goenka have been inherited by Keshab Prasad Goenka and as such shown in the estate duty return. Except this piece of evidence the defendants Nos. 1 and 2 did not choose to call any evidence or give any other documentary evidence in support of their claim that Keshab Prasad Goenka has inherited wealth from. Gouri Shankar Goenka. Merely because there is a statement in the dividend warrant that 1,300 ordinary shares were registered in the name of Gouri Shankar Goenka it cannot be inferred that those were inherited by Keshab Prasad Goenka after the death of Gouri Shankar Goenka. First of all from the document itself it appears that Keshab Prasad Goenka himself claimed the said shares as his own property and filed the said dividend warrants with his return. He may have got the said shares by way of gift or by sale or otherwise, during the lifetime of Gouri Shankar Goenka. Moreover, those two dividend warrants do not support the defendants Nos. 1 and 2's case that all the shares mentioned therein belonged to Gouri Shankar Goenka and money also belonged to Gouri Shankar Goenka. When on the contrary there is evidence adduced by the plaintiff by proving the statement of account in respect of the said account lying with the defendant No. 3 as also the pass book, which will show that money belonged to Keshab Prasad Goenka which was opened in the year 1953 and after the death of Keshab Prasad Goenka in 1954 various sums of money have been deposited in the said account in the name of Keshab Prasad Goenka.

20. The plaintiff examined Kashi Prasad Dhanuka whose evidence is that he used to look after the said account and he collected various cheques and cash payments in the money-lending business of Keshab Prasad Goenka and he himself deposited the same in the said account. He has most emphatically denied that this money or any portion thereof lying with the defendant No. 3 ever belonged to Gouri Shankar Goenka. While cross-examining the said witness, Mr. Sen appearing on behalf of the defendants Nos. 1 and 2 never challenged the said fact and he also did not put his case or suggest to the witness that money which was lying with the defendant No. 3 in the name of Keshab Prasad Goenka really belonged to Gouri Shankar Goenka or that Keshab Prasad Goenka inherited the same money or anything else from Gouri Shankar Goenka.

21. Looking into the details of the account it would support the evidence given by Kashi Prasad Dhanuka on behalf of the plaintiff. Various parties from various places have paid various amounts to Keshab Prasad Goenka after his death and a sum total of Rs. 91,281-4-4 was lying in the said account with the defendant No. 3, a copy whereof was filed with the estate duty return of Keshab Prasad Goenka. From the said accounts it will not only, show that no part of the money belonged to Gouri Shankar Goenka but that most of the amounts have been deposited in the account after the death of Keshab Prasad Goenka. Moreover, from the letter dated 20th November, 1959, written by the ITO, Dist. 1(1), P-8 Brabourne Road, Calcutta-1, it would appear that the ITO wrote to the manager of the defendant No. 3 stating that money held by them on account of the said Maina Debi of 122, Old Ghusuri Road, Howrah, be paid forthwith to the ITO under Section 46(5A) of the Indian I.T. Act, 1922 (Ex. 001). The officer concerned treated the said money as payable by Maina Debi. Nowhere have they stated that this money either belonged to Gouri Shankar Goenka or has been inherited by Keshab Prasad Goenka. By another letter dated 23rd November, 1959, the ITO gave notice under Section 46(5A) and in the said letter they have stated that money was lying at the credit of Keshab Prasad Goenka who was the assessee. From a letter dated 28th November, 1959, written by the Central Bank of India to Maina Debi it would show that the defendant-bank was also treating the said amount as payable to the plaintiff. In this case on the death of Gouri Shankar Goenka on 3rd May, 1959, the assessment order was passed on his death on his son, Keshab Prasad Goenka, as legal representative of late Gouri Shankar Goenka. It is the plaintiff's definite case that this money never belonged to Gouri Shankar Goenka nor did Keshab Prasad Goenka inherited this money from Gouri Shankar Goenka. When such a positive case was made in the plaint and the defendant in the written statement also made a positive case that this money belonged to Gouri Shankar Goenka and as Keshab Prasad Goenka inherited money from Gouri Shankar Goenka he should be liable to pay the said sum lying with the Central Bank of India but at the time of trial defendants Nos. 1 and 2 did not choose to lead any evidence to that effect nor any suggestion was given to the parties. Only an attempt has been made to commit the dividend warrant along with the estate duty return which had been filed in the estate of Keshab Prasad Goenka. In my opinion that evidence is not enough to discharge the defendants Nos. 1 and 2's onus or burden of proof. As I have already indicated above, the dividend warrants are not clear and it is also not free from doubt as to which of those shares were allowed to be the property of Keshab Prasad Goenka during the lifetime of Gouri Shankar Goenka. In view of that it is difficult to follow that those shares must have been inherited by Keshab Prasad Goenka from Gouri Shankar Goenka on his death. The term 'assessee' is wide enough to include his legal representative but under the old I.T. Act the legal representative was liable only to the extent of the property received by him from the deceased person. He could not be made personally liable for the dues of the deceased assessee. Under the new Act the liability is the same save and except that a little deviation has been made in the sense that a legal representative would be personally liable to that extent if he intermeddles with the said estate. If a legal representative does not receive any estate at all or if the legal representative does not inherit any property he is not liable for any assessment under both the old and the new Acts. In this case the defendants Nos. 1 and 2 have not been able to discharge their onus of proving that Keshab Prasad Goenka has inherited any property from Gouri Shankar Goenka. Keshab Prasad Goenka was an assessee in respect of the assessment made by the department in respect of the properties of Gouri Shankar Goenka. It is not the case of the defendants Nos. 1 and 2 that the plaintiff, Maina Debi, is the assessee. No notice has also been served on Maina Debi as an assessee or as a legal representative of Keshab Prasad Goenka, save and except in the proceeding under the Public Demands Recovery Act. Regarding the second point that the civil court has no jurisdiction to entertain any suit to set aside or modify any assessment although it is true that the term 'assessment' not only includes assessment but also includes determination, levy and also recovery of tax so far as the assessee is concerned. If Keshab Prasad Goenka himself would have filed a suit to modify or set aside the assessment or to resist the claim or attachment or recovery of the said sum it would have been hit by the provisions of Section 67 of the Indian I.T. Act, 1922. In this case the plaintiff, Maina Debi, is not an assessee. She is only a third party whose property has been taken away by the defendants Nos. 1 and 2 in respect of the assessment made on the estate of Gouri Shankar Goenka. Although the I.T. Act is a complete code and provides various remedies for the redress of an aggrieved assessee there is no other way for a third party but to file a suit and challenge if her property is taken away by the department in purported satisfaction of its dues against the deceased-assessee, so that suit by the taxpayer to set aside or modify an assessment is barred. A third party may file a suit against the Government for a declaration that he or she is entitled to the property which is treated by the ITO as belonging to the assessee (Secretary of State v. Radha Swami Sat Sang : [1945]13ITR520(All) , ITO v. Miyya Pillai : [1965]55ITR84(Ker) and Kanga & Palkhivala, Law and Practice of Income-tax, 7th Ed., p. 293).

22. In this case the suit is not to set aside or modify the assessment but only for a declaration that money which was lying with the defendant No. 3 belongs to the plaintiff and not to Keshab Prasad Goenka as legal representative of Gouri Shankar Goenka. Maina Debi was not a party to the assessment proceedings. She has not been served with any notice under Section 24B of the Indian I.T. Act, 1922. No income-tax was due from Maina Debi. Assessment which was made against Keshab Prasad Goenka was in respect of the estate of Gouri Shankar Goenka, deceased, and as such it was only to the extent of the assets received by Keshab Prasad Goenka from the said Gouri Shankar Goenka. In view of the fact that there is evidence to that effect, Maina Debi cannot be held to be liable to pay or part with the money lying in the account of Keshab Prasad Goenka with the defendant No. 3.

23. There is no evidence whatsoever that Keshab Prasad received any money from Gouri Shankar on his death. By considering the estate duty return and also the two dividend warrants one cannot come conclusively to the fact that 1,300 shares belonged to Gouri Shankar Goenka and on his death it has passed to, Keshab Prasad Goenka. From the estate duty return it is not clear that Keshab Prasad Goenka was the holder of the said shares and/or treated the said shares as his own or he has inherited the same on his death. There are two contradictor) statements in the dividend warrants itself. If those 1,300 shares were registered in the name of Gouri Shankar Goenka how could Keshab Prasad claim the dividend and give a declaration that it belonged to him in the year 1947 when Gouri Shankar Goenka was very much alive. The plaintiff's case that money belonged to Keshab Prasad Goenka and did not belong to Gouri Shankar Goenka is proved by the plaintiff's witness as also the notice, letters, pass book, bank statement as referred to above. On the death of Keshab Prasad Goenka in the year 1954 this money became the property of Maina Debi. As such I answer the issue No. 1 in the negative.

I answer the issue, No. 2 in the positive.

I answer the issue No. 3 in the negative.

I answer the issue No. 4 in the positive.

I answer the issue No. 5 in the negative.

24. So far as issue No. 6 is concerned, the plaintiff's counsel, Mr. Bhabra, did not press his claim against the defendant No. 3. Moreover, considering the evidence and various documents I hold that the defendant No. 3 has made the payment to the defendants Nos. 1 and 2 bona fide and pursuant to the notice served on it. Since the service of the said notice the defendant No. 3 had no alternative but to pay the said sum to the defendants Nos. 1 and 2. Moreover, the defendant No. 3 has given ample opportunity to the plaintiff to produce the letter of administration in her favour so that money could be handed over to her and also given sufficient time to the plaintiff to have this dispute settled or clarified with the income-tax authorities. In view of this, I answer issue No. 6 in the positive.

25. So far as issue No. 7 is concerned, as the plaintiff has not obtained letter of administration in respect of the estate of Keshab Prasad Goenka, I do not pass a decree at present in her favour but defer it till she obtains a letter of administration in respect of the estate of Keshab Prasad Goenka and file the same in court.

26. On the oral prayer of Mr. Prabir Majumdar, learned counsel for the defendant No. 1, there will be a stay of operation of the order for four weeks from date.


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