Commissioner of Income-Tax Bihar and
Orissa Vs. Manager, Court of Wards Estate, Bettiah  INSC 42 (24 February
24/02/1967 MITTER, G.K.
CITATION: 1968 AIR 16 1967 SCR (2) 748
Practice and Procedure-Tax
liability-Liability dependent on outcome of litigation-Assessment made while
title suit was pending-High Court setting aside assessment-Propriety of-
Procedure to be followed.
During the pendency of a suit by a person
claiming to be the heir of the Bettiah estate which was in the possession of
the Manager, Court of Wards, the Income Tax Officer made an assessment on the
Manager. In those proceedings the State of Bihar and the Manager claimed that
the estate had vested in the State by escheat and therefore the income was not
liable to tax. The Income-tax Officer, the Appellate Assistant Commissioner and
the Tribunal held that as the litigation was pending it could not be said of
the estate that the same had vested in the State by escheat. The High Court on
reference held that the income tax authorities could not impose the tax.
Setting aside the judgment of the High Court this Court in appeal.
HELD : The proceedings should be made final
after the disposal of the litigation and the High Court could call for a
supplementary statement of the case if necessary [750 D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1172 of 1965.
Appeal from the judgment and order dated
December 17, 1963 of the Patna High Court in Misc. Judicial Case No. 566 of
R. H. Dhebar for R. N. Sachthey, for the
S. P. Varma, for the respondent.
The Judgment of the Court was delivered by
Mitter, J., This is an appeal from a judgment and answer of the High Court of
Judicature, Patna, on a certificate granted by it under s. 66-A(2) of the
Income-tax Act of 1922 corresponding to s. 261'of the Income-tax Act of 1961.
The Tribunal referred two questions of law to the High Court under s. 66(1)
"I. Whether on the facts and circumstances of the case, could assessment
be made upon the Manager of Court of Wards, Bettiah Estate, in respect of the
income from the Bettiah Estate ?
2. If the assessment could be made on the
Manager of the Court of Wards in respect of the income from the 749 Bettiah
Estate, was it chargeable to tax at maximum rates under s. 41(1) of the I
ncome-tax Act?" The facts of the case are as follows :- Maharani Janki
Kuer who was the last holder of the Bettiah Estate in Bihar died on November
27, 1954. For many years passed before her death, the estate was under the
management of the Court of Wards and continued under such management even after
her death as it was not known whether she had left any heirs. Under s.
13 of the Bengal Court of Wards Act (IX of
1879) "Whenever, on the death of any ward, the succession to his property
or any part thereof is in dispute, the Court may either direct that such
property or part thereof be made over to any person claiming such property, or
may retain charge of the same until the right to possession of the claimant has
been determined under Bengal Act VII of 1876, or until the dispute has been
determined by a competent Civil Court." "Court' here means the Court
of Wards. One Suresh Nandan Sinha filed a suit claiming the estate on the
allegation that he was the nearest heir of the deceased Maharani.
After the death of the Maharani, the
Income-tax Officer made an assessment on the Manager of the Court of Wards as
representing the estate of Bettiah, the assessment relating to the assessment
year 1956-57 the accounting year being the financial year 1955-56. The
Government of Bihar claimed that the estate had vested in the State Government
by escheat and the Manager, Court of Wards put forward that claim before the
Income-tax authorities. There was a further contention raised by the Manager
that even if the assessment was made on him representing the estate, the income
should not be taxed at a maximum rate under s. 41 (1) of the Income-tax Act,
1922. As the litigation was pending, the Income-tax Officer and the Appellate
Assistant Commissioner both held that it could not be said of the estate that
the same had vested in the State by escheat and they also held that the income
was taxable at the maximum rate. The same plea was raised before the Appellate
Tribunal and the Tribunal observed that as no notification had been issued by
the Government on the death of the Maharani or later to the effect that the
estate had vested in the State of Bihar by escheat, there was no certainty as
to who would be found to be the ultimate heir in view of the pending
The High Court on the case stated, referred
to Arts. 289 and 296 of the Constitution and taking note of the contentions
urged on behalf of the parties observed :
"In the circumstances of the present
case, it is manifest that the Income-tax authorities cannot validly impose a
tax upon the Manager, Court of Wards, 750 Bettiah Estate, merely because a
title suit has been filed with regard to the heirship of the Bettiah Estate
without deciding the question as to whether the claim of the State of Bihar
that the property has vested in it by escheat is established or not." On
this view, the first question was answered in favour of the assessee and no
answer was given to the second question because it was academic.
It was asserted on behalf of the
respondent-and not denied by the appellant-that the suit of Suresh Nandan Singh
had been dismissed, but an appeal had been preferred therefrom and was pending.
On the facts as the same appear to us at present, it is not possible to hold
that the estate of Bettiah has escheated to the State of Bihar. It is obvious
that in case of such escheat there can be no assessment to income-tax. The
position will be clarified after the appeal by Suresh Nandan Sinha is disposed
of. In this view of the matter, the judgment of the Patna High Court is set
The proceedings should be finalised after the
disposal of the litigation and the High Court may call for a supplementary
statement of case, if it thinks necessary.
The question as to whether the estate has
escheated to the State of Bihar is left open, and the costs of this appeal will
abide by the ultimate decision of the High Court. In case it be found that the
escheat had taken place, the appellant before us will have to pay the costs of
this appeal and if there is no escheat, the Commissioner will have the costs of