LexTHE ADDITIONAL INCOME-TAX OFFICER, SALEM versus E.ALFRED
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r
(I) 8.C.R.
SUPREME COURT REPORTS
143
THE ADDITIONAL INCOME-TAX OFFICER,
SALEM
v.
E.ALFRED
(S: K. DAS, J. L. KAPUR and
M. HmAYATULLAH, JJ.)
Income Tax-Tax of deceat<ed pci·•on payable by representa-
tive-Legal repreaentatfre tUSease. by .fiction-Failure to pay
assessed tax-PenaUy, if could
be impowl-lncome-tax Act,
1.922 (11of1922), ss. 22, (2), (23), 248 (2), 29, 30, 46 (1).
One E died intestate during his year of account lea\ing
behind him his son A the respondent and eight daughter,,
After notice under s. 22 (2) of the Income Tax Act was issued,
A was assessed under s. 24 B (2) of the Act and notice of de-
mand was issued under s. 29. The respondent a ppe,aled to the
Appellate Assistant Commissioner, but during the pendencv
of the appeal a penalty was imposed upon him under s. 46 (I)
of the Act by the Income-tax Officer as the respondent had
defaulted in payment of tax on the due date. After the appeal
was disposed of a notice of demand was again issued to th~
respondent to pay the tax. On respondent's default, a second
penalty was imposed upon him.
Respondent challen1?ed this
order l;>y writ. The High Court quashed the order inter alia
holding that s. 46 (I) did not apply to a legal representative
as he was assessed as an assessee un.der a fiction ins. 24 B (2)
and that fiction came to an end when the assessment '\vas
made, for the fiction was created for the limited purpose of
assr.:ssment, and sinte that sub .. section was not concerned with
collection, the fiction could not be carried, beyond assessment
rcsuhing in the determination of tax.
The question was whether the fiction came to an r.nd
after the assessment, so that the legal representative rernainf"d
a mere debtor to the deparlment or could he be ordcrerl 10
pay penalty under s. 46 (1) of the Act.
lleld, that the fiction made the respondept an asscssec
for the purpose of assessing the total income of E. That fic-
tion did not come ta an end after the assessment.
When a
thing is deemed to be something else, it is to b~ treated as if it
is that thing, though, in fact it is not E beinit dead hefore ihe
notice, either general or special, to him, could not he heated
as an assessee, and the process of the Act, was, by fiction,
made available against the legal representative who was the
aS!CSsee for purposes of assessmt!nt which meant the entire
procc,. of computation and levy of the tax and the fiction hlld
to be worked· out to its logical conclusion. The definition ol
1961
Octobr 20.
IWJ
T},, A.''iliMa/
l11rn11-la.t 0 JfirtF,
Salim
v.
E . . ~~{111/
HiJ~ralVllah ].
144 SUPREME COURT REPORTS (1962) SUPP.
the word assessee being defined in the Act as a petson by whom
income-tax is payal.ile, the legal representative came within
the definition and his assessment br.ing made under s. 23 he
had also a right of appeal under s. 30 since he did not ceas~ to
be an assessce after the determination of the tax at least for
the purpose of sub-s. (2) of s. 2l B, and s. 29 applied to tl1e
legal representative in his position as the asscssec.
Commi .. sioner of /11rmne-ta<r v. TPja Si11gli, [ 1959] Supp. 1
S. C. R. 394 and b.'11111 E11d Dtrt/li11g• Co., Ud. , •• Finsb11ry
&>rouylt Council, [1952] A. C:. 10~, referred to.
CIVIL APPELLATE JvnrsnrcTro:s:
Civil Appeal
No. 282 of 1!)60.
Appeal from t.he judgment and or<ler
dat~d
l<'Pbrue.ry 15, lll56, of tho Madras High Court in
Writ Petition No. 40t of 195!?.
K. N. Rnj11gopaln Sa.~tri and P. D. Menon, for the
appc lla.nt.
R. Gopalahi&h11an, for the respondent.
1961. October 20. The Judgment of the
Court was delivered by
HrnAYATUr.LAH, J.-Whether tho legal rep-
resentative of a. deceased person, who is assessed
in respect of the total income of the latter perRon,
1\8 if be were the assessee, can be ordered to pa.y a
penalty under s. 46( I) of the India Income-tax
Act, is the short question that a.rises in thid
appeal.
One EbenC'Zer died intestate on November,
22, l!H5, during his yca.r of account which ended
on March :11, 1946.
He left behind him the res-
pondent, E. Alfred, his son, and eight daughters.
For the assessment year, 1946-47, the rt'spondent
waa assesst'<l under s. :!4 B(2) of the Income-ta:oc
Act, after a notice waa iRsused t-0 him under s.22( 2),
ibid. The assessment was completed on March 26,
1951, and a notice of demand was i88ued under
s. 29 of the Act.
The respondent appealed against
the order of a88e88!Dent to theExcerpt shown. Read the full judgment & AI analysis in Lexace.