Law:

Section:

Section 147, read with section 159 of the Income-tax Act, 1961 [Corresponding to section 34 read with section 24B(2) of Indian Income-tax Act, 1922] - Assessment years 1950-51 and 1951-52 - Income escaping assessment - General - Whether under Mohamedan law only father, father's father or testamentarily appointed guardian or guardian appointed by Court can be de jure guardian of minor - Held, yes - Whether where mother of minors was not appointed as guardian either testamenrtarily or by court, notices issued to mother as de facto guardian of minors could not be treated as proper notice served on minors and, therefore, entire assessments made on basis of such notices were liable to be set aside - Held, yes FACTS The assessee died in 1956. For the three assessment years, namely, 1950-51, 1951-52 and 1953-54, assessments were made by issue of notices to R, the wife of the assessee, treating her as the legal representative of her deceased husband. Later on realizing that the assessments should be made on the minor sons of assessee also, the ITO reopened the assessments for 1950-51 and 1951-52 by issuing notices under section 34 of the 1922 Act on 'R', her children and the two children by the first wife of the deceased. So far as the minors were concerned, the ITO issued notices treating 'R' as their guardian. The assessments were made accordingly. Before the AAC, the assessee contended that there was no proper notice on the minor legal representatives, that the ITO acted illegally in treating the service of notice on 'R' as service of notice on the minors, that under the Mohamedan law the mother was not the legal guardian of the minors and the court alone could appoint a legal guardian for them and that, in the circumstances of the case and the ITO not having taken steps to have a legal guardian appointed by the Court, the assessments made were illegal and must be set aside. The AAC upheld the assessments in the view that the mother was the de facto guardian and that the notice served on her could be treated as proper notice served on the minors. The Tribunal accepted the contention of the assessee and set aside the assessments. On reference : HELD It is settled…

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