Commissioner of Income Tax, Madhya
Pradesh, Nagpur Vs. Hukamchand Mohanlal [1971] INSC 251 (17 September 1971)
GROVER, A.N.
GROVER, A.N.
HEGDE, K.S.
CITATION: 1971 AIR 2591 1972 SCR (1) 786
CITATOR INFO:
D 1991 SC 70 (3)
ACT:
Income Tax Act, 1961, s. 41(1)- Assessee
successor in business to her deceased husband--Amount received by assessee by
way of remission of sales tax paid by husband -If liable to tax in the hands of
the assessee under s. 41(1).
HEADNOTE:
The assessee who was successor-in-business to
her deceased husband was sought to be taxed under s. 41 (1) of the Income-tax
Act, 1961, in respect of certain amount received by her by way of remission
from the sales tax recovered from her husband. On the 'question whether the
amount was assessable under s. 41(1) of the Act.
HELD : Section 41(1) does not apply, because,
the assessee who is sought to be taxed is not the assessee contemplated by the
section. If the husband of the assessee had been alive and had received the
amount which had been remitted during his life time he would certainly have
been liable to pay tax under the provisions of s. 41(1). But the husband having
died the Revenue could not take any advantage of its provisions. The Act does
not contain any provision making a successor-in-business or the legal
representative of an assessee to whom an allowance has already been granted
liable to tax under s. 41(1) in respect of the amount remitted and received by
the successor or the legal representative. [788 C-D, 789 A-B] C.I.T., Bombay
City v. Amarchand N. Shroff 40 I.T.R 59 and C.I.T Bombay v. James Anderson, 51
I.T.R. 345, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2421 of 1968.
Appeal from the judgment and order dated
January 31, 1967 of the Madhya Pradesh High Court in Misc. Civil Case No. 88 of
1966.
R. N. Sachthey and B. D. Sharma, for the
appellant.
Rameshwar Nath and Swaranjit Sondhi, for the
respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by certificate from a judgment of the Madhya Pradesh
High Court in an Income tax Reference.
The Reference related to the assessment made
on the assessee for the year 1962-63 for which the accounting period was the
year ending March 31, 1962. The assessee carried on business as sole, selling
agent of M/s. Mohanlal Hargovindas, Jabalpur. The assessee succeeded to this
business on the death of her husband on or about February 17, 1960. It would
appear that M/s. Mohanlal Hargovindas had recovered a certain amount towards
sales-tax from the assessee's husband relating to the period January 26, 787
1950 to March 31, 1951. In an appeal filed by the said firm, however, the
Assistant Commissioner of Sales Tax remitted the sum of Rs. 24,341/- so
recovered by the firm by an order dated November 31, 1960. Consequently M/s. Mohanlal
Hargoving das refunded that amount to the assessee by means of a draft dated
October 31, 1961. This draft was received by the assessee on November 9, 1961
which fell in the accounting period. The Income tax Officer sought to tax this
amount under the provisions of s. 41 (1) of the Income tax Act 1961,
hereinafter called the 'Act'. He did not accede to the contention of the
assessee that the income, if at all, was the income of the assessee's deceased
husband and not her income. The Appellate Assistant Commissioner dismissed the
appeal filed by the assessee. The Tribunal acceded to the contention of the
assessee that since the allowance or deduction in question had been obtained by
a different assessee, namely, her husband she was not liable to pay tax on that
amount under s. 41 (1) of the Act. The Tribunal was moved by the Commissioner
of Income tax for stating a case and referring the following question to the
High Court :
"Whether the sum of Rs. 24,341 was
liable to tax under s. 41 (1) of the Income tax Act, 1961 ?" The High
Court answered the question in favour of the assessee.
Section 41(1) is in the following terms:-
"41 (1) Where an allowance or deduction, has been made in the assessment
for an year in respect of loss, expenditure or trading liability incurred by
the assessee, and subsequently during any previous year the assessee has
obtained whether in cash or in any other manner whatsoever, any amount in
respect of such loss or expenditure or some benefit in respect of such trading liability
by way of remission or cessation thereof, the amount obtained by him or the
value of benefit accruing to him, shall be deemed to be profits and gains of
business or profession and accordingly chargeable to income tax as the income
of that previous year, whether the business or profession in respect of which
the allowance or deduction has been made is in existence in that year or
not".
As pointed one by the High Court under the
general law if a trading liability has been allowed as a business expenditure
and, if this liability is remitted in any subsequent year the amount remitted
cannot be taxed as income of the year of the remission nor can the account for
the year id which the liability was allowed be reopened or adjusted. Section
41(1) was enacted to supersede this principle but this section can apply only
to the a In 788 the present case if the husband of the assessee had been alive
and had received the amount which had been remitted during his lifetime he
would certainly have been liable to pay tax under the provisions of S. 41(1).
But Kanhaiyalal having died and his widow
being the assessee she cannot possibly be brought within the section. Section
2(7) of the Act defines the word "assessee". The definition is very
general and assessee is stated to mean a person by whom income tax or super tax
or any other sum of money is payable under the Act and includes every person as
mentioned in clauses (a), (b) and (c). The assessee, in the present case, does
not fall within any of those clauses. There is no specific provision in the Act
under which it can be said that the assessee is a person by whom income tax is
payable on the amount of Rs. 24,341/- which came to her by way of remission on
account of what had transpired in the lifetime of her husband. The Act does not
contain any provision making a successor in business or the legal
representative of an assessee to whom an allowance has already been granted
liable to tax under s. 41(1) in respect of the amount remitted and received by
the successor or the legal representative.
The only provision which relates to the
liability of the legal representative is s. 159 of the Act. Sub-section (1)
thereof provides that where a person dies his legal representative shall be
liable to pay any sum which the deceased would have been liable to pay if he
had not died in the like manner and to the same extent as the deceased. The
corresponding provision in the Income tax Act 1922 was s. 24B. In Commissioner
of Income tax Bombay v. Amarchand N.,' Shroff (1) it was laid down by this
Court that s. 24B did not authorise the levy of tax on receipts by the legal
representative of a deceased person in the year of assessment succeeding the
year of account being the previous year in which such person died. The assessee
had ordinarily to be a living person and could not be a dead person. By S. 24B
the legal personality of the. deceased assesses was extended for the duration
of the entire previous year in the course of which he died. The income received
by him before his death and that received by his legal representative after his
death but in that previous year became assessable to income tax in the relevant
assessment year.
Any income received in the year subsequent to
the previous year or the accounting year could not be called income received by
the deceased person. Thus the provisions of s. 24B did not extend to tax
liability of the estate of a deceased person beyond the previous or the
accounting year in which that person Income tax, Bombay v. James Anderson(1).
Indeed the learned counsel for the Revenue
did not and could not rely on the provisions of s. 159 of the Act in the
present case nor was any reliance (1)1. T. R. 59.
(2) 51 1. T. R. 345.
789 placed on any other section in the Act
apart from s. 41 (1).
The, question referred is also based on that
very section.
That section, in our opinion cannot possibly
apply to the present case because the assessee who is now sought to be taxed is
not the assessee contemplated by that section. The assessee within s. 41 (1),
namely, Kanhaiyalal having died the Revenue could not take any advantage of its
provisions.
The High Court rightly observed that the
question whether the amount of Rs. 24,341/- was liable to tax as the personal
income of the assessee did not arise in the present case in which the sole
point to be decided was whether that amount was assessable in the assessee's
hands under s. 41 ( 1 ) of the Act.
We, therefore, entirely concur in the view of
the High Court and agree with the answer returned by it. In the result the
appeal fails and it is dismissed with costs.
K.B.N. Appeal dismissed.
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