# THE ADDITIONAL INCOME-TAX OFFICER, SALEM v. E.ALFRED

- **Citation:** [1962] Supp. 1 S.C.R. 143
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** S: K. Das, J. L. Kapur, M. HmAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-additional-income-tax-officer-salem-v-e-alfred-2410
- **Pages:** 8

## Headnote

Income Tax-Tax of deceat<ed pci·•on payable by representative-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 demand 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 fiction 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 representative 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 respondent, E. Alfred, his son, and eight daughters.
For the assessment year, 1946-47, the rt'spondent
waa assesst'<l under s. :!4 B(2)

## Text

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 representative-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 demand 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 fiction 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 representative 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 respondent, 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 the A ppellato ABl!ista.nt
Commissioner, but
during the pcndency of the
appeal, a penalty of Rs. 250/- was impoaed upon
'
(1) S.C.R.
SUPREME COURT REPORTS
145
h;m under s. 46(1) of the Act by the Income-tax
Officer, as he had defaulted in payment of tax
on the due date. After the appeal wits disposed
of with very minor modifications, a notice of
demand was again i~suPd to him to pay the tax
on or before December I5, 1951. On his default,
a second penalty of Rs. 10,000/-
was imposed
upon him on March 8,
1952./ The respondent
then filed a petition under Art. 226 of the Constitution in the High Court of Madras challenging the imposition and levy of penalty imposed
upon him. The High 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 thats. 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-sect.ion "when an
assessee is in default in making a payment of Income
tax" because oft he scheme of the Act, particularly
s. 29, where a distinction is made between "an assessee" and "other person". According to the learned
Judges, a legal reprf sentative is assessed as an assessee
under a fiction in s. 24B(2), and: that fiction comes
to an end when the computation of the tax or, in
other words, the assessment is made. The learned
Judges drew a distinction between the three subsections of s. 24B, and pointed out that sub-s. (I)
only created a liability on the legal representative
for collection of tax but did not refer to him for
that purpose as an assessee and sub-s.(3) which
did not concern itself with collection, did not refer
to the legal representative as an assessee, and held
that the fiction in sub-a. (2) was created for the
limited purpose of assessment, end since that subsection also did not concern itself with oollection,
the fiction could not be carried beyond assessment resulting in the aetermination of the tax.
1181
TM Addi'ional
l•comt·tax Q jfuer,
Salrm
v.
Ill·. Al.fr,,/
HidayaJulluh J.
19111
T1u AdJitiornzl
Income-tax Ojfiur,
SaJ.,.
••
E. Alhd
Hido7atu/la~ J.
146 SUPREME COURT REPORTS [1962] SUPP.
Thereafter, according to the High Court, the legal
representative is not an aasessee within t.he mraning of a. 2!1, but can only be brought under tho
words "other person", and inasmuch as ss. 45
and 46 refer to "an asaeSBee in default", the legal
representative cannot be treated as such and no
penalty can either be imposrd upon him or recovered.
We are concerned with
the definition of
"asaesaee" before its amendment in 1953. That
definition read as follows :
"asaessee" means a ptiraon by whom incometax is payable"
The generality of this definition is sufficient
to include even a legal repres<>ntative who is to
pay the tax, thongh out of the asaets of the deceased person.
Section 24B, which makes •- legal
represPntative liable, is 1111 followR :
"24B.
(I) Where a
ptirMn dies, his
executor, administrator, or other legal representative shall be liablt> to pay out of the
estate of the deceased person to the extent
to which the estate is c11.pable of meeting
the charge the tax assesaed aF 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 ser'l"ed
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 aha.II, on the serving of the notice
under sub-section (2) of Rection 22 or under
section 34, as the case may be comply therewith, and the Income-tax Officer may proceed
to assess the total inr.ome of the deceased
person as if auoh executor, administrator or
other legal representative were the assossee.
'
-.
•
I
I
(I) s.c.R.
SUPREME COURT REPORTS
147
(3) where a person dies, without having furnished a return which he has been
required to furnish under the provisions of
section 22, or having furnished a return which
the income-tax Officer has reason to believe
to be incorrect, or incomplete, the Incometax Officer may make an assessment of the
total income of such person and determine the
tax payr.ble hy him on the basis of such
assessment and for this purpose may, by
the issue of the appropriate notice which
would have had to be served upon the deceased person had he
survived, require from
the executor, administrator or other legal
representatfre of the deceased person any
accounts, documents or other evidence which
he might under the provisions of sections 22
and 23 have required from the deceased person'~.
The scheme of the section, which was inserted
by the Second Amendment Act of 1933 and modified further by the Amendment Act of 1939 is as
follows: Sub-section (1) ofs. 24B makes, inter alia
the legal representative liable to pay out of the
estate of 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 the Act, if
he had not died. By this sub-section, a legal representative is made liable to pay the tax which
might have been asses~ed 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 impo~i
tioμ, levy and collection of the tax, sub-section (2)
and (3) ne!!:t provide for different contingencies.
Sub-section ( 2) provides that where a person dies
1961
The Additional
/neoTtUalax 0 fficer,
Salem
v.
E. Alfred
Hidaya,ullah J.
T ht AddifiOfl/1/
lncomc·l~ Ojfictr,
Salem
v.
J:. At:!td
llitfayaJullah J.
148 SUPREME COURT REPORTS (1962] SUPP.
b<'for~ the p11blic<1tion of a general notice or before
he is serv<'d with a. Apecial notice under s.22 ors. 34
bis legal reprm;eut1tive shall, on the service of the
Rpccial notic·es. comply with these notkes, and the
Income-tax Officer may proceed to apsess the total
income of the deceased
peraon aA if the lPgal
r<'prcscntath·e were the assessee.
Sub section (3)
provides that. where a pPrson dies aftn he has been
required to furnish a return but. without haviug
furnished HU<:h return, or whrrc he
ha..~ furnished
the return hut the Income-tax Officer has reas.111 to
believe it to 1,.. incorrect, the Income.tax Officer
may make the assessment of the total income of
such deceaEed person, and dewrmine, the iax after
serving suc-h notices, as may be required under s.22
or 23, upon the legal r"prescntative of the d1•ceased
person to produce the account!!, documents or other
evidence.
In the present case, the matter fell to be
governed by
the second sub-section, her.a.use
Ebenezer dii·d before the end of his year of account.
The service of the notice upon the ~espondcnt and
his assessment, as if he wne the asse~sec, wew
made under the Recond sub-s<'ct.ion.
Rv reaRon of
this as~essment, t.he respondent became.liable under
the first sub-sfction to pay out of the eRtate of
EbeneZ<'r the tax assessed, to f.he extent to which
Ebenezer's estate was capable of meeting the charge
but he himself wa.s deemed to be the assesaee.
No doubt, the fiction made the ri·spondcnt an
assessee for the purpose of assesFing the total income
of Ebenezer.
But thr~ question is whether the
fiction ca.me to an en i after the assessment, so that
he
rl'mained a mere debtor thcreaftn to the
Department. The anywer tll this , question would
determine the further application of the other
sections of the Act. "When a thing is deemed to be
something elso, it is to be treated as if it is that
thing, though, in fact, it is not. The original ass1·ssee
being dea.d before the notice, either general or
(1) S.C.R. SUPREME COURT REPORTS
14!!
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 computa.
tion and levy of the tax. It is in this sense that the
kgal representative becomes an assessee by the
fiction, and it is this fiction which has to be fully
worked out, without allowing the mind "to boggle"
as was said in Com.missioner of Income-Tax v.
Teja Singh(') applying the dictum of Lord Asquith
in East End Dwellings Co., Ltd. v. Finsbury Borough
Council('). If we turn to the definition of "assessee",
it says that an assessee means a person, by whom
income-tax is payable.
A legal representative who
by fiction, is deemed to be an assessee therefore,
comes within this definition, because he is !I. person
by whom income-tax is payable, though out of the
assets left by a deceased person.
The assessment
of the legal representative is then made under s. 23
of-the Act, and he has the right to appeal under
s. 30, which he would not have, if he ceased to be an
assessee after the determination of the tax. We
are not concerned in this case with the position of
the legal representative under the third sub-section
of s.24 B, and are not required to consider what
his position would be, if he made a default in . the
payment of the tax. The fiction is enacted. at least
for the purpose of sub·s. (2), and it is to that sub·
section that we are confined in this case. Nor can
the
fiction
in that
sub-section be
limited
by provisions of law for a totally deft'erent situ&·
ti on.
Under s.45, if a notice of demand is issued under
s.29 on an assessee and has.not been complied .with
the assessee is deemed to be in default, and under
s. 46 (1), if the assessee is in default, a penalty,
can be imposed.
All these stages the respondent
(I) (1959) Supp. 1 S.C.R. 39~.
(2) [1952] A.C. 109, 132.
19&/
The Addi;iJJrial
Inco~·ta~ Officer,
Salem
v.
E. Alfred
Hidayaiullah J.
1961
T~ Additional
lnc~-tox 0 lfic1r,
Saltrn
v.
E. A(f"d
Bidayotul/a/i J.
150 SUPREME COURT REPORTS [1962] SUPP.
went through in this case.
He was himself an
assessce qua the assets an<l liability to tax, of
Ebt>nczer ; he was, therefore, an assessee in <lefault
and liable to the imposition of penalty for this
default. The question is whether s.29, which makes
a distinction hetwe<'n an asse88ee 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 s. 29
where in addition to an "asseseee" liable to pay the
tax occur the words "other person" liable to pay
such ta.x, and observed that the respondent would
fall to be govcmed by the words "other person"
liable to pay such tax and not by the words "the
assessee" liable to pay such tax. The High Court
reasoned, therefore, that the words "an aBSessee" in
88. 45 and 46 in their application are limited to an
assessee, who ia assessed on his own behalf and not
"other person", who is not an asseBSee.
This
distinction, it observed, must be borne in mind in
int.erpreting the word "asseasee" used in 88. 45
and 46,
and
so
construing,
Ii mi ted
the
word "asse88ee" in those two sections to an
asseBSee proper. 'fhe words "other person" cannot
apply to a legal representative, if he is an a.BSessee
bl fiction, and the fiction has to be worked out to
ita logical conclusion.
If he falls within the
word "aesessee', e.s has been shown a.hove, 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 respondent a~ an
e.ssessee.
The appeal thus succoods, and is allowed with
costs here and in the High Court.
Appeal allowed.
•