judgement:
iminal Appeals Nos.
160 to 162 of 1960.
Appeals by special leave from the judgment and order dated January 20, 1960 of the Allahabad High Court in Criminal Government Appeals Nos.
2011 to 2013 of 1958.
B. C. Misra and P. K. Chakravarti, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
September 27.
The judgment of the Court was delivered by MUDHOLKAR, J.
These three appeals arise out of three separate trials before the Additional Sessions judge, Bulandshahr, but were argued together as they arise identical questions.
In all these trials, the appellant, who was a postman attached to the Bulandshahr post office was tried for offences under section 52 of the Indian Post Office Act, 1898 (VI of 1898) and in two of ' them, also for offences under sections 467 and 471 of the Indian Penal Code.
Briefly stated the allegations against the appellant were that he either stole or secreted five registered letters and that he fabricated three receipts showing that the registered letters were received by the addressees.
The learned Additional Sessions judge acquitted the appellant of all these offences.
The State then preferred an appeal against his acquittal in these three cases to the High Court of Allahabad but restricted the appeal to the acquittal of the appellant in respect of offences under 410 section 52 of the Indian Post Office Act, 1898 (hereafter referred to as the Act).
The High Court held that the appellant had secreted the five registered letters in question and on this finding set aside his acquittal and convicted him in each of the three appeals for offences under section 52 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year in each case.
The appellant has come up to this Court by special leave.
Briefly stated the prosecution case is that when the house in which the appellant lives along with his father Diwan Singh, a retired Police Head Constable, was searched by the C.I.D. Inspector, S.N. Singh, along with Masood Murtaza, Sub Inspector of Police, Bulandshahr on May 12, 1956, in connection with a case against Messrs Greenwood Publicity, they accidentally discovered a large number of letters and postcards and also the five registered letters in question.
At the time of the search the appellant who happens to be a trade union official, was not in Bulandshahr but was away on leave at Delhi in connection with a postal conference.
These articles were found in an almirah, the key of which was produced by the appellant 's father.
The articles were not listed at the spot but were taken to the Kotwali in a sealed packet and later on listed there.
A number of other articles were also seized at that time but we are not concerned with them as they have no connection with the charges against the appellant.
Briefly, the appellant 's defence in all these cases is that there are two factions in the Bulandshahr post office and that these articles were planted by the opposite party.
According to him, the planting must have occurred in the Kotwali when the Sub Inspector purported to make a list of the articles seized from the house in which the appellant lives.
Further, according to him, neither the house nor the almirah from which the articles are said to have been 411 seized was in his exclusive possession.
He stated and that fact is not denied that the house which consists of two rooms only has been rented in his father 's name, that both of them live in those two rooms and that the almirah was in his father 's possession inasmuch as the key was produced by him.
On behalf of the appellant Mr. B. C. Misra has raised the following six points: (1) That on the findings arrived at by the High Court no offence under section 52 of the Post Office Act has been made out.
(2) That it has not been established that the five registered letters were in the exclusive possession of the appellant.
(3) That the search was illegal inasmuch as it was in contravention of the provisions of sections 103 and 165 of the Code of Criminal Procedure.
(4) That in examining the appellant the Ad ditional Session Judge did not comply with the requirements of section 342 of the Code of Criminal Procedure.
(5) That the High Court has not found that there were compelling reasons for setting aside the appellant 's acquittal .
(6) The sentences in the three cases having been ordered to run consecutively the total sentence is excessive.
We will deal with the last four points first.
So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated.
It may be that where the provisions of ' sections 103 and 165, Code of Criminal Procedure, are 412 contravened the search could be resisted by the person whose premises are sought to be searched.
It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure.
But beyond these two consequences no further consequence ensues.
The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would not re examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court.
In so far as the contravention of provisions of section 342, Code of Criminal Procedure, are concerned it is sufficient to point out that no grievance was made either before the Court of the Additional Sessions judge or before the High Court that there was such a contravention and the appellant was prejudiced and we cannot allow the point to be raised for the first time here, the reason being that whether there was prejudice is a question of fact and cannot be permitted to be agitated for the first time in an appeal under article 136 of the Constitution.
As regards the fifth point, it is sufficient to say that this Court has held that an appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court finds that the acquittal is not justified by the evidence on record it can set aside the acquittal without coming to the conclusion that there were compelling reasons for doing so.
In so far as the sentence is concerned, bearing in mind the fact that the maximum sentence awarded under section 52 of the Act is seven years it would not be right to say that in ordering the sentences in the three cases to run consecutively the appellant is being very severely punished.
In so far as section 52 of the Act is concerned the argument is that the prosecution having merely shown that the registered letters were recovered from an almirah in the house in which the appellant lives the 413 utmost that could be said is that he was in possession of letters, that is, assuming that he was in the exclusive possession of the house and the almirah.
The mere fact of possession, according to learned counsel, does not suffice to show that the letters were secreted by the appellant.
It is contended that for an officer of the post office to be found guilty for any of the acts specified in section 52 it has further to be shown that he was entrusted with the postal article with respect to which he is alleged to have committed any of those acts.
Section 52 of the Act runs thus : "Penalty for theft, dishonest, misappropriation, secretion, destruction, or throwing away of postal articles.
Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by post or anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine.
" The first act referred to in this section is theft.
Surely it cannot be contended that any (entrustment ' is necessary with regard to that act.
Indeed, if entrustment were proved and the article entrusted is not found to have been disposed of in the manner permissible under the Act, the offence committed would be not theft but criminal breach of trust.
according to Mr. Misra, the appellant cannot be said to have secreted the letter just because it was found in the almirah which is said to have been in his exclusive possession.
To secrete means, according to the dictionary "to hide".
In connection with a postal article addressed to some person the fact that it is retained in his possession by an officer of the post office in an almirah and that too for an inordinately long period would be tantamount to hiding that 414 article.
Of course, what act amounts to "secreting" would necessarily depend upon the facts of each case and in our opinion in a case like the present, what 'has been established by the prosecution would sustain an inference of secreting.
Further, a perusal of section 55 makes it clear that where the entrustment of an article is made an ingredient of an offence, the legislature has used appropriate words to make the matter clear.
If, therefore, it was the intention of ' the legislature that for an officer of the post office to be punished for secreting, destroying or throwing away a postal article in the oucrse of transmission by post, entrustment of that article to him was essential it would have used language similar to that used by it in section 55.
It seems to us that bearing in mind the ' fact that an officer of the post office having in the course of his duties access to postal articles kept or lying in the post office, the legislature has deliberately enlarged the scope of section 52 so as to encompass secretion, destruction or throwing away of postal articles by an officer of the post office even though they may not have been entrusted to him or even though the are riot articles with which he is required or is competent to deal in the course of his duties.
The object of the provision is to prevent postal articles 'in course of transmission by post ' from being tampered with, and so the secreting, destruction ' etc., of postal articles to which the provision is directed is to such secreting, destruction etc., as would frustrate or tend to frustrate their delivery to the addressees.
Then Mr. Misra contended that it would not be correct to say that the five registered letters recovered from the almirah were in the course of transmission by post because that recovery was made 7 or 8 months after those letters had been despatched and that no complaint had ever been made regarding their nondelivery by the senders or the addressees of those letters.
He further referred to the fact that at least in respect of three of the registered letters 415 acknowledgments purporting to be from the addressee were obtained and were with the post office.
He admitted that the prosecution allegation was that those documents were fabricated but that case having failed before the Court of Sessions and the Government not having appealed against that part of the decision of that court it must be held that at least three of those letters were duly received by the addressees.
The expression "in course of transmission by post" has been defined in section 3 (a) of the Act as follows : .lm15 " a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a Post Office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII.
" The mere fact that there is even a delay of several months in delivering a postal article to the addressee would not mean that the article had ceased to be in course of transmission.
It is common experience that delivery of postal articles is now and again delayed for a considerable length of time may be through accident or through the negligence of the postal employees.
It is probably for this reason that the definition clearly lays down that until an article despatched by post is delivered or can be said to be delivered that it will be deemed to be in course of transmission.
We cannot, therefore, accept the first part of this contention of Mr. Misra.
As regards the other point, that is, based on the fact that there were acknowledgments in respect of three letters in the post office we may point out that the existence of these acknowledgments would no more than raise a presumption that those articles were delivered to the addressees.
The addressees have been examined in this case and they have deposed that the letters in question were not received by them.
Their 416 evidence has been believed by the High Court and therefore, there is an end to the matter.
In the circumstances, therefore, we do not accept Mr. Misra 's contention that the act of an officer of the post office in being in possession of a postal article for an inordinate length of time has no significance and cannot justify the conclusion that he had secreted the article.
The next and in our opinion the most important question to be considered is whether the prosecution has established that the five registered letters in question were recovered from the possession of the appellant.
As already stated, all that the prosecution has been able to prove is this case is that these letters were found in an almirah of the house in which the appellant lives jointly with his father and of which the key was furnished by the father.
Dealing with this question the High Court has observed as follows : "In the first place, the respondent alone had the opportunity and the means to secure such a large number of postal articles.
(2) that at least nine of those postal articles were addressed to the respondent himself (vide exhibit Ka 9, serial No. 66), (3) that Dewan Singh, who, we are informed is a very old man, would not foist the said incriminating articles on his son and thus ruin his career for ever, and (4) that the respondent alone can be said to have had some motive for secreting and concealing the registered letters and other postal articles in question.
" Before the High Court could take into consideration the circumstance that as between himself and his father the appellant had a better opportunity to 417 get at postal articles it had to find affirmatively that the almirah was in the exclusive possession of the appellant.
We have not been able to discover anything in the judgment which directly bears on this question.
As the key was produced by the appellant 's father and there is no evidence that it was ever with the appellant it would not be legitimate to infer that the almirah was even in the appellant 's joint, much less in his exclusive, possession.
Tile circumstance that the almirah contained, apart from the registered letters in question, certain other articles belonging to the appellant cannot sustain an inference that the almirah was in the appellant 's possession exclusively or even jointly with his father.
We may recall that the almirah contained a large number of articles belonging to the father and since he had the key with him it must be he who must be deemed to be in possession of the almirah and consequently of its contents including the registered letters in question.
Apart from that, out of the four reasons given by it, the last, as pointed out by the High Court itself, is a speculative reason and must, therefore, be left out of consideration.
The second 'reason ' is no reason at all because a very large number of articles found in the almirah admittedly belong to the father.
The third reason that the rather would not foist articles to incriminate the son and thus ruin his career assumes that had the father kept the articles he could have done so only if he wanted to incri minate the son.
We cannot understand why the father, if he happened to get possession of the articles from some source may not have kept them in the almirah in the same way in which he had kept the other articles belonging to him.
That leaves, therefore, only the first reason.
We doubt if on the basis of this reason alone the High Court could have held that though the locked almirah was not in the exclusive possession of the appellant, these articles were in his exclusive possession.
If the point to be 418 established was whether the appellant had availed himself of the opportunity to procure the articles it could have been established by showing that he was in their exclusive possession.
But to say that he must be deemed to be in exclusive possession of these articles and not merely in their joint possession along with his father because he had the opportunity to get at the articles and then infer that he must have utilized the opportunity and was therefore in their exclusive possession would be arguing in a circle.
Moreover since entrustment of the articles has not been established, the taking away of the articles by the appellant from the post office (if that is how he came by the articles) would be theft but it has not been found that he committed any theft.
Indeed, had it been so found he could have been convicted under section 52 without the Court having to consider whether he had secreted the articles.
We may mention that Mr. Mathur who appears for the State does not even suggest that the articles were stolen by the appellant.
Therefore, the contention that he had an opportunity to get at the articles loses all significance and can possibly have no bearing on the question as to the nature of possession attributable to the appellant.
In the circumstances we must hold that the prosecution has failed to prove that these letters were in the exclusive possession of the appellant.
No presumption can, therefore, be drawn against him that he had secreted them from the mere fact that they were found in the almirah which, at best, may be regarded as being in the joint possession of himself and his father.
But, as already stated, even an, inference of joint possession would not be legitimate.
For these reasons we allow the three appeals and set aside the conviction and sentences passed against the appellant.
Appeal allowed.

summary/full:
The appellant, a postman, and I,is father were living in the same house.
Certain undelivered postal articles were re covered from an almirah in the house, the key of which was produced by the father.
The appellant was tried and convicted of an offence under section 52 Post Offices Act for secreting postal articles.
The appellant contended that since it had not been proved that he had been entrusted with these articles the offence under section 52 was not made out and that lie could not be held guilty of secreting as he was not in exclusive possession of these articles.
Held, that entrustment was not an essential ingredient of the offence under section 52.
Where the legislature intended to make entrustment an ingredient of the offence it had used appropriate words to make it clear.
It had used no such words in section 52.
To secrete means to hide.
In a case like the present, the retention of an undelivered postal article in an almirah for an inordinately long period would be tantamount to hiding that article.
Held, further, that the appellant was not in exclusive possession of the postal articles and no inference could be drawn 409 that he had secreted them.
As the key was produced by the appellant 's father it could not be inferred that the appellant was in joint possession of the almirah much less that he was in exclusive possession of it.
No inference could be drawn from the fact that the almirah contained certain other articles belonging to the appellant as it also contained a large number of articles belonging to the father.


judgement:
l Appeals Nos.
15 to 19 of 1962.
Appeal from the Judgment and order dated October 10, 1958, of the Bombay High Court in Income tax Reference No. 22 of 1 958.
H. N. Sanyal,, Additional Solicitor General of India, N. D. Karkhanis and R. N. Sachthey, for the appellant.
701 A. V. Viswanatha Sastri, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents.
October, 23.
The judgment of the Court was delivered by KAPUR, J.
These a peals pursuant to a certificate of the High Court of Bombay raise the question of interpretation of section 24B of the Income tax Act in an Income tax Reference.
The question referred was answered in the negative and against the Commissioner of Income tax who is the appellant in these appeals, the respondents being the heirs and legal representatives of one Amarchand N. Shroff deceased.
The appeals relate to the assessment years 1950 51, 1951 52, 1952 53, 1953 54 and 1954 55.
Shortly stated the facts of the case are these Amarchand N. Shroff, Mangaldas and Hiralal were partners in a firm of solicitors.
Amarchand died on July 7, 1949.
Thereafter the partnership was carried on by Mangaldas and Hiralal up to November 30, 1949, and on December 1, 1949, Ramesh son of Amarchand who had by then qualified as a solicitor joined the firm as the third partner.
After the death of Amarchand the arrangement between the various partners in regard to the realisations of the old outstandings was that in respect of the work done up to the death of Amarchand the realisations were to be divided amongst Amarchand, Mangaldas and Hiralal, in respect of the work between July 8, 1949, and November 30, 1919, the realisations were to be divided between Mangaldas and Hiralal 'and in respect of work done after December 1, 1949, the realisations were to be divided amongst Mangaldas, Hiralal and Ramesh.
The firm kept its accounts on cash basis.
For the five assessment years 1950 51 to 1954 55 the following amounts were received : Rs. 37,847/ , As.
43,162/ , Rs. 34,899/ , Rs. 13,402/ and 702 Rs. 32,523/ by the heirs and legal representatives of Amarchand out of the outstandings.
The Income tax Officer sought to tax these realisations.
For the assessment years 1950 51 and 1951 52 he assessed the amounts in the hands of the heirs and legal representatives of Amarchand as a Hindu undivided family.
Against that order an appeal was taken to the Appellate Assistant Commissioner and then to the Appellate Tribunal.
The two members of the Tribunal agreed in holding, though for different reasons, that the amounts were not the income of the Hindu undivided family but merely represented inheritance or realisations of the assets of Amarchand.
The matter was not pursued further by the Revenue but sometime later proceedings were started by the Income tax Officer under section 34 in respect of the same income in the hands of "Amarchand N. Shroff by his heirs and legal representatives".
The status of that entity was taken to be that of an individual and not Hindu undivided family.
The various amounts were assessed to income tax in the hands of the respondents under section 34(1) (b) read with section 24B of the Income tax Act.
The assessments so made were for the assessment years 1950 51, 1951 52, 1952 53, 1953 54 and 1954 55: On appeal the Appellate Assistant Commissioner held that.
the notice under section 34 could validly be served only for the assessment years 1950 51 and notices for the subsequent years were invalid.
The assessments for 1951 52 to 1954 55 were therefore quashed.
The Commissioner of Income tax took an appeal to the Appellate Tribunal and the Tribunal held that assessment could not be made on Amarchand and that section 24B had no application to the income received after the death of Amarchand and that it was capital receipt and not revenue receipt.
The order of the Appellate Assistant Commissioner was therefore upheld, On the application of the Commissioner of 703 Income tax the following question of law was referred to the High Court : "Whether on the facts and in the circumstances of the case, the sums of Rs. 37,847/ , Rs. 43,162/ , Rs. 34,899/ , Rs. 13,402,/ and Rs. 32,523/ were assessable to income tax in the hands of the assessee "Amarchand N. Shroff by his legal heirs and representatives" in the five respective years under reference ?".
The High Court answered the question in the negative.
It held that apart from section 24E of the Income tax Act the amounts were not taxable and that the section had no application to the case.
It was argued by counsel for the Commissioner of Income tax that on a correct interpretation of section 24B the amounts which were received by the heirs and legal representatives of Amarchand after his death should be deemed by the fiction incorporated in sub section
(1) to be income received by Amarchand and liable to tax under section 24B (1) of the Income tax Act.
In other words the respondents as heirs and legal representatives of the deceased Amarchand were liable to pay out of the estate of the deceased Amarchand on those amounts to the extent of the estate as the estate was liable for tax on the amounts received by the heirs and legal representatives just as the deceased Amarchand would have been had he not died.
The emphasis was on words in section 24B (1) "or any tax which would have been payable by him under this Act if he had not died".
Section 24B is as follows : section 24B 11,Tax of deceased person payable by represen tative (1) Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to Which the estate 704 is capable of meeting the charge the tax assessed as payable by such person or any tax which would have been payable by him under this Act if he had not died.
(2) Where a person dies before the publication of the notice referred to in sub section (1) of section 22 or before he is served with a notice under sub section (2) of section 22 or section 34, as the case may be, his executor, administrator or other legal representative shall, on the serving of the notice under sub section (2) of section 22 or under section 34, as the case may be, comply therewith and the Income tax Officer may proceed to assess the total income of the deceased person as if such executor, ad ministrator or other legal representative were the assessee.
(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 Income tax Officer may make an assessment of the total income of such person and determine the tax payable by 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 any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 have required from the deceased person.
" Sub section (1) provides that where a person dies his heirs and legal representatives are liable to pay out 705 of the estate of the deceased the tax assessed as payable by the deceased or any tax which would have been payable under the Act by the deceased if he had not died.
According to the 'submission of counsel for the Commissioner of Income tax the words of sub section
(1) "or any tax which would have been payable by him under this Act if he had not died" mean that irrespective of the date of ' receipt of income receivable by a person, if the income is received by his heirs and legal representatives after his death, they are liable for payment of the tax just as the deceased would have been liable when the income was received had he been living.
But this interpretation is not in accord with the language used in s.24B. All the sub sections have to be read together.
Sub section (1) can be divided into two parts; (1) where the income of the deceased was assessed before his death and (2) where the income was not so assessed but it would have been liable to tax had he not died.
The second part or the words above quoted when read with sub sections (2) and (3) show that they are confined to cases therein mentioned.
They show that those words also have to be restricted to the income received by the deceased person before his death and to the income received after his death by his heirs and legal representatives but in the previous" year and which had not been assessed but would have been assessed as income received by him if death had not taken place.
See Allen vs Trehearne(1) where the words "if he had not died" were interpreted.
Sub section (2) provides that if a person dies before the publication of the public notice under s.22 (1) or before a notice is served on him under sub sections 2 of section 22 or section 34 then the Income tax Officer may proceed to compute or assess the total income of the deceased person as if the heirs and legal representatives were the assessees Sub section (3) provides that when a person dies before a return is furnished by him under the provisions of section 22 or dies after having furnished the return which the (1) (1938) 22 Tax.
15, 706 Income tax Officer finds incorrect or incomplete then the Income tax Officer can make assessment on the total income of the deceased person and certain other consequences follow but in all the cases enumerated above the language used in sub sections 1, 2 and 3 of s.24B contemplates that the heirs and legal representatives of a deceased person are liable to pay income tax out of his estate (1) where assessment had already been made and (2) where he dies before the assessment but the income was received before his death or by his heirs and legal representatives after his death which occurs during the previous year.
If he dies before the publication of the notice under S.22(1) or before the service under s.22(2) or after the service but before he has furnished a return or filed an incorrect or incomplete return then the Income tax Officer should make an assessment of the total income of such deceased person and determine the tax payable thereupon.
Section 24B does not authorise levy of tax on receipts by the legal representatives of a deceased person in the years of assessment succeeding the year of account being the previous year in which such person died.
Income tax is exigible in reference to a person 's total income of the previous year.
The question before us is whether the income which was received subsequent to the previous year in which Amarchand died is liable to be assessed to income tax under section 24B as his income in the hands of his heirs and legal representatives.
In the present case the accounts were kept on cash basis.
The assessee under the Act has ordinarily to be a living person and cannot be a dead person because his legal personality ceases on his death.
By section 24B the Legal personality of a deceased assessee is extended for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous 707 year becomes assessable to income tax in the relevant assessment year.
The section was enacted by the Legislature to bring to tax, after his death, income received during his lifetime, and fill up the lacuna which was pointed out by the High Court in Ellis C. Reid vs Commissioner of Income tax, Bombay(1).
Any income received in the year subsequent to the previous or the account year cannot be called income received by the person deceased.
The provisions of section 24B do not extend to tax liability of the estate of a deceased person beyond the previous or the account year in which that person dies.
In support of his contention counsel for the Commissioner of Income tax relied upon the scheme of the Act as given in Additional Income tax Officer vs E. Alfred(2).
There is nothing said in that case which supports the contention raised by the Commissioner of Income tax.
Reliance was next placed on certain observations in a judgment of the Bombay High Court in re.
B. M. Kamdar(3).
Those observations also are of no assistance to the Commissioner of Income tax, Kania, J., as he then was) there observed that the question whether a particular amount was income or not had nothing to do with the time of its receipt and the question of receipt was material.
only for the purpose of determining whether on that amount tax was to be levied under the Act in the year of assessment.
That was a case where a consulting engineer discontinued his practice as such from February 15, 1938, and he received a sum of money representing the outstanding 'professional fees earned by him prior to the discontinuance of his practice but realised by him during the Calendar year which was the previous year.
The assessee was keeping is accounts on cash basis and he contended that as he had discontinued his profession in the previous year the source had come to an nd and the amounts received by him were not liable to income tax.
It was held that the income was assessable.
The assessee in that case was still alive when the income (1) (2) , 445. (3) [1946] 14 l.
T.R. 10.
708 was received by him and section 24B had no application to the facts of the case.
Counsel also relied on the observations of Derbyshire, C.J., in re Sreemati Usharani Shoudhurani(1).
In that case the managing agent of a limited company died on May 12, 1938.
At the time of his death there was a credit with the company of a sum of money on account of commission earned by him and due to him prior to the date of his death.
This sum was paid after his death in the previous year 1938 39 and was sought to be taxed under section 24B of the Income tax Act.
It was held that this income was taxable.
Derbyshire, C.J., said at p. 205 that the assessee who was the widow had received the salary due to her husband; that the Income tax Officer was entitled to assess the total income of the deceased person as if the legal representatives were the assessees and the amount was liable to tax under section 24B (1), but in that case also the amount was received by the widow in the previous year and it was earned by the deceased during the previous year.
The correct position is that apart from s.24B no assessment can be made in respect of the income of a person after his death.
See Ellis C. Reid vs Commissioner of Income tax, Bombay(2).
In that case, and that was a case before section 24B was enacted, a person was served with a notice under section 22(2) of the Income tax Act but no return was made within the period specified and he died.
It was held that no assessment could be made under section 23(4) of the Act after his death.
At p.106 it was observed : "The is to be noticed that there is through the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional It must have (1) (2) 709 been present to the mind of the legislature that whatever privileges the payment of income tax may confer, the privilege of immortality is not amongst them.
Every person liable to pay tax must necessary die and, in practically every case, before the last instalment has been collected, and the legislature has not chosen to make any provisions expressly dealing with assessment of, or recovering payment from the estate of a deceased person".
The individual assessee has ordinarily to be a living person and there can be no assessment on a dead person and the assessment is a charge in respect of the income of the previous year and not a charge in respect of the income of the year of assessment as measured by the income of the previous year.
Wallace Brothers & Co. Ltd. v Commissioner of Income tax, Bombay City(2).
By section 24B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted.
As was observed by this Court in Bengal Immunity Co. Ltd. vs The State of Bihar(2) legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate: field.
In the present case the fiction is limited to the cases provided in the three subsections of section 24B and cannot be extended further than the liability for the income received in the previous year.
In the present case the amounts which are sought to be taxed and which have been held not to be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment.
It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income (1) , 244.
(2) , 664.
710 of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years.
In our view the High Court rightly answered the question in the negative and against the Commissioner of Income tax.
The appeals therefore fail and are dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Sub section (1) of section 24B of the Indian Income tax Act, 1922, provided that where a person dies his heirs and legal representatives ate liable to pay out of the estate of the deceased the tax assessed as payable by the deceased or any tax which would have been payable under the Art by the deceased if he had not died.
A who, was one of the three partners in a firm of solicitors died.
on July 7,1949, and thereafter the partnership was carried on by the other two partners till December 1, 1949.
when R, son of A, joined the firm as the third partner.
After the death of A the arrangement between the various partners in regard to the ' realisations of the old out standings was that in respect of the work done up to the death of A the realisations were to be divided between A and the other two partners.
The firm 700 kept its accounts on cash basis For each of the five assessment years, 1950 1955, certain amounts were received by the heirs and legal representatives of A out of the out standings.
Proceedings were started by the Income tax Officer under section 34 of the Indian Income tax Act, 1922, in respect of the aforesaid.
income, and the various amounts were assessed to income tax in the hands of the respondents, the heirs and legal representatives of A, under section 34 (1) (b) read with section 24B of the Act, for the five respective assessment years, on the footing that the amounts which were received by the heirs and legal representatives of A after his death should be deemed by virtue of the words in sub section
(1) of section 24B to be income received by A and liable to tax under that sub section.
Held, that the words "or any tax which would have been payable by him under this Act if he had not died" under section 24B(1) of the Indian Income tax Act, 1922, are restricted to the income received by the deceased person before his death and to the income received after his death by his heirs and legal representatives in the "previous year" and which had not been assessed but would have been assessed as income received by him, if death had not taken place.
The provisions of section 24B do not extend to tax liability of the estate of a deceased person beyond the previous or the account year in which that person dies.
Apart from section 24B no assessment can be made in respect of the income of a person after his death.
Held, that as the income was received after the expiry of the previous year in which A died it was not liable to be taxed as the income of A in the hands of his legal representatives in the several years of assessment.
Allen vs Trehearne, , Ellis C Reid vs Commissioner of Income tax Bombay, and Wallace Brother & Co. Ltd. vs Commissioner of Income tax, Bombay City, [1948] 16 , referred to.