The income received by the executor during the course of administration belongs to him and he alone is liable to be assessed as such.

B.S.Dhillon, J.

1. The assessees father, Shri Shamsher Singh was the managing director of the Amritsar Sugar Mills Ltd., Amritsar. He died on May 18, 1970. Before his death, ho used to be assessed as " individual" in respect of his income from salary, dividends and interest on deposits, etc.

2. By a will dated May 15, 1970, Shri Shamsher Singh bequeathed his entire property exclusively to the assessee, his only son. After the death of Shri Shamsher Singh, the ITO made two separate assessments in respect of his income for the assessment year 1971-72, one in respect of his income for the period from January 1, 1970 to May 18, 1970, in the hands of his son, Sampuran Singh, the assessee, as his legal heir under Section 159 of the I.T. Act, 1961 (hereinafter referred to as "the Act") and the other relating to the period from May 18, 1970 to December 31, 1970, also in the hands of Shri Sampuran Singh, as the executor of his estate under Section 168 of the Act. Since the assessee was also an income-tax assessee with the financial year as his accounting year, a separate assessment for the assessment year 1971-72, was made in his individual capacity in respect of his income from salary, dividends and interest on deposit. Consequently, for the assessment year 1971-72, three different assessments were made on January 24, 1972, in three different capacities.

3. On a scrutiny of the records, the Commissioner of Income-tax was of the view that the assessment order dated January 24, 1972, in respect of the personal assessment of the assessee for the assessment year 1971-72,-was erroneous and prejudicial to the interests of the revenue, inasmuch as the ITO failed to include in the assessed income of the assessee the income derived by him from May 18, 1970 to March 31, 1971, from the assets inherited by him from his father. A notice under Section 263 of the Act was served on the assessee. The assessee pleaded that the assessment in respect of the income from the estate of his father for the period from May 18, 1970 to December 31, 1970; had been correctly assessed in his hands as an executor under the mandatory provisions of Section 168 of the Act and that the income was not includible in his personal assessment.

4. By his order dated January 9, 1974, the Commissioner rejected the plea of the assessee and observed as follows :

"4. In this written reply dated February 5, 1974, the assessee has attempted to lay emphasis on the point that the two assessments made in accordance with the provisions of Sections 159 and 168 in respect of the income of the deceased are in order and that therefore the proceedings initiated under Section 263 may be dropped. To support his view, the assessee has placed reliance mainly on the provisions of Sections 159 and 168 and the judicial decisions reported in [1950] 18 ITR 787 (Mad) (V.M. Raghavalu Naidu and Sons v. CIT), [1952] 22 ITR 177 (Cal) (Asit Kumar Ghose v. Commr. of Agrl. I.T.], [1973] 79 ITR 364 (Cal) (Gwindlal Bangurv. ITO), [1965] 56 ITR 34 (SC) (Administrator-General of West Bengal for Raja P. N. Tagore Estate v. CIT) and [1933] 17 TC 749 (HL) (IRC v. Wahl). I find that none of these judgments, from which assistance is sought by the assessee, comes to the rescue of the assessee, for, the facts of all these cases are materially different from the facts in the instant case. None of these had to consider a case where the executor also happens to be the sole beneficiary of the property and where the formal completion of administration of the estate of the deceased is left to the sweetwill of the beneficiary-executor. As regards the contention that the two assessments made are in accordance with the provisions of Sections 159 and 168, it is not disputed that the assessment for the period from 1-1-1970 to 18-5-1970 in terms of Section 159 is in order. What is wrong is the assessment of the income pertaining to the period subsequent to 18-5-1970, in the manner provided under Section 168(2) of the Act.