( 1 ) THE petitioners are the sons and legal representatives of one K. S. Rangaiah Setty (who is hereinafter referred to as the assessee ).-An order of assessment under the provisions of the Incometax Act, 1961 (hereinafter referred to as the Act) was passed against the assessee in respect of the assessment year 1964-65 and a notice of demand under S. 156 of the Act was served on him. The assessee having committed default, a certificate was issued to the Tax Recovery Officer under the provisions of S. 222 (1) of the Act. After the issue of the said certificate, the assessee died on 13-10-1970 leaving behind him the petitioners as his legal representatives.

( 2 ) THEREAFTER a warrant of attachment was issued by the Tax Recovery officer to attach certain properties in the possession of the petitioners without mentioning the names of the petitioners as the defaulters in the notice. The said warrant of attachment was questioned before this Court in WP. No. 16 of 1972 by the petitioners. In the Statement of objections filed on behalf of the Revenue, it was submitted that the warrant would be withdrawn and steps would be taken to recover the arrears from the petitioners in accordance with law. In view of the said statement made on behalf of the Revenue, the petition became infructuous and it was disposed of accordingly on 17-12-1973. In the meanwhile under Rule 60 of the Income-tax (certificate Proceedings) Rules, 1962 (here in after referred to as the Rules), which requires the issue of a notice to the legal representatives of a deceased defaulter, notices in Form ITCP had been served on the petitioners. Hence after the disposal of WP. No. 16 of 1972, further proceedings were taken in order to recover the arrears of income-tax due and payable by the assessee from the petitioner. Aggrieved by the said proceedings, the petitioners have filed these writ petitions the principal ground on which these petitions are founded is that the recovery proceedings are illegal and unauthorised in the absence of service of notice of demand under S. 156 of the Act on the petitioners who are the legal representatives of the assessee. The said contention is resisted by the revenue.

( 3 ) IN support of his contention, Sri K. Srinivasan, learned counsel for the petitioners, relied upon the decision of the Allahabad High Court in sathyapal Varma v. Income-tox Officer,1973 Tax L. R 195. The said decision no doubt lends support to the contention urged in these petitions. With great respect to the learned Judges who decided the said case, I cannot agree with the conclusion reached by the Allahabad High Court in the said case. The extent of the liability of legal representatives in respect of the income-tax due and payable by an assessee is set out in S. 159 of the Act. Sec. 159 (1) provides that where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pav if he had not died, in the like manner and to the same extent as the deceased. Sub-sec (3) of S 159 states that the legal representatives of the deceased for the purpose of the Act be deemed to be assessees and sub-sec. (4) provides that the liability of the legal representatives under S. 159 shall be subject to the provisions of sub-sees. (4) and (5) be limited to the extent to which the assessee is capable of meeting the liability.

( 4 ) IT is not disputed that the assessee had become a defaulter and a certificate had been issued under S. 222 Of the Act against him during his life time. The procedure that should be adopted for recovering the arrears of income-tax from the legal representatives of a deceased defaulter is to be found in the Rules enacted in Schedule II of the Act. Rule 85 of Schedule II reads as follows :' If at any time after the issue of the certificate by the income-tax officer to the Tax Recovery Officer the defaulter dies, the proceedings under this schedule (except arrest and detention) may be continued against the lega

Click Here to Read the rest of this document