PDS # 4751         Reference :   , 62 TAX 62

Income tax Appeals Nos. 122/KQB and 123/KQB of 1987 88, decided on 8th March, 1990
Date of hearing: 3rd March, 1990

APPELLATE TRIBUNAL INLAND REVENUE

Before Farhat Ali Khan, Chairman

Moulvi Niamatullah Khan for Appellant. Abdul Razzak Memon, D.R. for Respondent

JUDGMENT/ORDER/FINDINGS/RECOMMENDATIONS

In these appeals quite an interesting point of law has arisen under the following facts and circumstances. 1.
According to Moulvi Niamatullah Khan, the learned counsel for the appellants, Mst. Fakrunnisa, an individual,
filed her return for assessment years 1979 80 and 1980 81 and after framing of the assessment orders,
demand notices in the sum of Rs. 49,767 and Rs. 5,766 were served on her on 15 5 1980 and 18 2 1981
relating to assessment years 1979 80 and 1980 81 respectively. However, the tax was not paid and on 22 9
1986 she departed for her heavenly abode. On 10 6 1987 the tax demand created for assessment years 1979
80 and 1980 81 was discharged by payment of aforesaid amount of Rs. 49,766 and Rs. 5,766 and thus the
I.T.O. who has been sleeping over the Government revenue for years together was awakened from his
slumber and after issuing notices on 26 10 1987 under section 89 of the Income tax Ordinance he imposed
additional tax amounting to Rs. 52,768 and Rs. 5,456 on 30 11 1987 in each assessment year concerned.
Moulvi Niamatullah Khan further submitted that both the appeals filed against both the orders were
dismissed by the learned CIT (A) by his impugned order. 2.Supporting the appeals Moulvi Niamatullah Khan,
the learned counsel for the appellant vehemently argued that since no notice was served by the I.T.O. on
the legal representatives hereinafter called as LRs. of late Mst. Fakhrunnisa, all the proceedings commenced
under section 89 of the Income tax Ordinance, 1979 were null and void. The learned counsel also
vociferously argued that it was the duty of the Income tax Officer to find out the LRs. and serve notices on
them. Alternatively the learned counsel also contended that since the additional tax was nothing but interest
and since the levy of interest was held unconstitutional by Karachi High Court vide PLD 1987 Karachi 404 the
orders under Section 89 creating liabilities of Rs. 52,768 and Rs. 5,457 were unenforceable. in law. Moulvi
Niamatullah Khan has relied upon unreported decision of Division Bench of this Tribunal recorded in I.T.A.
No. 249 and others KB 1972 73 dated 25 2 74, M/s. M.G. Kader & Co. v. I.T.O. together with ITR (1963) 48
ITR 59 (S.C.), CIT, Bombay City v. Amarchand N. Shroff (1963) 47 ITR (Cal.), Sahasranghsi Kanta Acharya v.
Collector of Malda and others (1978) 111 ITR (Gauhati), Jai Prakash Singh v. Commissioner of Income tax,
Assam in support of his first submission and on PLD 1987 Karachi 404 and PLD 1989 Karachi 304 in support of
his alternative submission. 3. Mr. A. R. Memon, the learned D.R. on the other hand has supported both the
officers below. According to him the return for assessment year 1986 87 was filed by Mst. Fakhrunnisa hence
the contention of learned counsel that she died on 22 9 1986 was not correct. He further contended that tax
paid on 10 6 1987 was either paid by Mst. Fakhrunnisa herself or her LRs. According to learned D.R. The
address given in return filed for the assessment year 1986 87 as well as for earlier assessment years of 1979
80 and 1980 81 was C/o M/s. Ruknuddin Ltd. Bambino Chamber, Karachi. The learned D.R. therefore
contended that the notices served on aforesaid address under Section 89 were in accordance with
requirement of law and thus under these facts and circumstances it was not the duty of the I.T.O. to find out
the LRs of aforesaid Mst. Fakhrunnisa and saddle them with the tax liability. Turning to the alternative
submission of Moulvi Niamatullah Khan, the learned D.R. submitted that since it was not raised before both
the officers below, it should not be entertained at this stage. Exercising his right of reply the learned counsel
for Mst. Fakhrunnisa contended that the return for assessment year, 1987 1988 was filed by the LRs of
aforesaid Fakhrunnisa on 30 6 1987 hence the knowledge of her death could easily be imputed to the Income
tax Officer on 26 10 87 when he issued notice under section 89. The learned counsel reiterated his
submission that it was the duty of the I.T.O. to serve notice under Section 89 of the Income tax Ordinance on
the LRs of late Mst. Fakhrunnisa. Moulvi Niamatullah Khan, however, argued that before the learned CIT (A)
he had taken his alternate submission in ground No. 4 of his memorandum of appeal filed before learned CIT
(A). Thus, important question which has sprung up before me is as to whether under the facts and
circumstances of this appeal it was the duty of the I.T.O. to bring the LRs of aforesaid Mst. Fakhrunnisa on
record and then serve notice under section 89 of the Income tax Ordinance, 1979 on them before levying
additional tax thereunder? However, I think that in order to answer aforesaid question one more question is
required to be answered and it is whether under the facts and circumstances of these appeals the additional
tax imposed by the Income tax Officer under section 89 of the Income tax Ordinance was unrecoverable
being void illegal and inoperative? But the learned counsel for the appellant has also raised one more
question and it is as follows: Whether the additional tax is interest in effect and if so whether the levy
thereof was unconstitutional in view of aforesaid two decisions of Karachi High Court. 4. I have heard both
the learned counsel for the appellant as well as the learned D.R. at length and have also gone through the
relevant case law as well as the provisions of the Income tax Ordinance. However, I would like to start my
discussion with question No. 2 as reproduced above and to start with it I reproduce hereinbelow section 74 of
the Income tax Ordinance which reads: "74 Liability in the case of a deceased person. (1) Where a person
dies, his legal representative shall be liable to pay any tax 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. (2) For the purpose of making
an assessment of the income of the deceased and recovery of tax, (a) any proceeding taken against the
deceased before his death shall be deemed to have been taken against the legal representative from the
stage at which it stood on the date of the death of the deceased; and (b) any proceeding which could have
been taken against the deceased if he had survivied may be taken against the legal representative, and all
the provisions of this Ordinance shall, so far as may be, apply accordingly. (3) The legal representative of the
deceased shall, for the purposes of this Ordinance, he deemed to be an assessee. (4) The liability of a legal
representative under this section or section 71 shall be limited to the extent to which the estate of the
deceased person is capable of meeting the liability. (5) For the purposes of this section and sections 71 and
97, "legal representative" includes an executor, administrator and any person administering the estate of a
deceased person... From perusal of subsection (1) of 74 as reproduced above it appears that the legal
representative of an assessee, is liable to pay any tax which the deceased assessee would have been liable to
pay if he had not died. It has been further laid down in aforesaid subsection that liability of such LIZ is to be
determined "in the like manner and to the same extent as the deceased". However, subsection (4) of
aforesaid section 74 has limited tax liability of the deceased in the hands of its LRs to the extent of the value
of estate which he or they might have received from him. Subsection (2) of this section lays down that in
such cases where any proceedings had been initiated against an assessee before his death, it shall be
deemed to have been taken against the LRs and may be continued against him or them from the stage at
which it stood on the date of the death of the deceased assessee. Similarly, it also provides that any
proceedings which could have been taken against the deceased if he had survived may be taken against his
LRs. Subsection (5) of section 74 provides that an executor, administrator and any other person
administering the estate of a deceased assessee shall be included within the definition of legal
representative. 5. Thus, with this background when I revert to the facts and circumstances of this appeal it
becomes quite clear that tax liability of Mst. Fakhrunnisa was determined regarding relevant assessment
years much before her death. Similarly it also appears that the notice of demand was also served on her in
her lifetime. However, it is true that return for the assessment year 1986 87, has been filed in her name on
30 10 1986 but I think that the death certificate which has E been produced by Moulvi Niamatullah Khan,
conclusively proves that she had expired on 22 9 1986. Consequently I am left with no choice but to hold that
the return for assessment year 1986 87 was filed on 10 10 1986 by someone on her behalf. Similarly, the tax
paid on 10 6 1987 regarding assessment years 1979 80 and 1980 81 should have also been paid by someone on
her behalf and I am in no hesitation to hold that such "someone" would not have been anybody else but
someone who was administering the estate of aforesaid late Fakhrunnisa and thus he fell within the
definition of LR as given in subsection (5) of section 74 of the Income tax ordinance as reproduced above. I
am very much fortified in this conclusion, firstly because the name and address were those of Mst.
Fakhrunnisa and secondly because such LR took advantage of provision of subsection (1) of section 74 of the
Income tax Ordinance. 6. Now turning to the issue pertaining to service of notice under section 89 which is
an integral part of question No. 2, I find that the same was served on 2610 1987 on "Mst. Fakhrunnisa C/o.
Ruknuddin & Co. Bambino Chamber, Karachi". It is true that the return for assessment year 1987 88 was filed
by her LRs on 306 87 but it is also true that in the return the particulars of all LRs were not given. Even their
names have not been disclosed. Strangely enough this position has been maintained even in memorandum of
appeal filed before learned AAC and this Tribunal. Thus, when the I.T.O. issued notice in the name of Mst.
Fakhrunnisa on 26 10 87 on the address which was shown not only in the return for assessment year 1986 87
which was filed on 30-10 86 but also in the return for the assessment year 1987 88 which was filed on 30 6
1987, he acted according to the provision of clauses (a) and (b) of subsection (2) of section 74 of the Income
tax Ordinance. Clause (a) of subsection (2) puts LRs in the shoes of a deceased assessee under a fiction of
law and authorises the Assessing Officer to pick the thread against LRs from the' stage it was broken because
of the death of the lessee. Similarly clause (b) of subsection (2) authorises an Assessing Officer to initiate
any proceedings against the LRs of a deceased assessee which he could have taken against him. It is true that
the notices under section 89 were issued in the name of Mst. Fakhrunnisa on 26 10 87 whereas she had
already expired on 22 9 86 but in spite of filing of the return for assessment years 1986 87 and 1987 88 and
the payment of tax relating to assessment years 1979 80 and 1980 81 the names of LRs. of aforesaid Mst.
Fakhrunnisa were not divulged and disclosed to the I.T.O. Mr. Moulvi, Niamatullah Khan, the learned counsel
for the appellant argues that it was the duty of the Assessing Officer to make inquiries about LRs and then
serve notices on them. The learned counsel further contended that notices issued in the name of a dead
person was void ab initio. Mr. A.R. Memon, the learned D.R. on the other hand insists that it was the duty of
the LRs of Mst. Fakhrunnisa to give their particulars to the I.T.O. and thus I am compelled to dispose of
Question No. 1 before proceeding further with Question No. 2 with which I had started my discussion.
However, before proceeding further let me analyse authorities relied upon by Moulvi Niamatullah Khan to
find out as to how far they can be helpful to me in resolving this controversy. 7. From perusal of the
unreported decision of Division Bench of this Tribunal in the case of Kadir & Co. (Supra) it appears that one
called M.G. Kadir carried on his business in the name and style of Kadir & Co. as sole proprietor thereof. He
had not filed his return for assessment year 1967 68. The I.T.O., therefore, served the notice on him on 21 8
fib under section 34 of the repealed Income tax Act but he did not file his return. The I.T.O. as then
constrained to issue another notice under section 22(4) of the repealed Income tax Act which was also served
on him but remained unresponded and meanwhile on 7 10 1970 aforesaid M.G. Kadir breathed his last, but
the LT.O. created tax liability of Rs. 53,717. From persual of the aforesaid decision it appears that this
liability has been referred to regarding assessment years 1968 69 to 1972 73 which apparently is a typing
mistake. It is also revealed from perusal of aforesaid decision that a notice under section 34 of the repealed
Income tax Act was issued and was allegedly served on aforesaid M.G. Kadir on 21 8 68 relating to
assessment years 1968 69 to 1972 73 before his death on 7 10 1970. The I.T.O., however, proceeded further
and determined the tax liability amounting to Rs. 50,000 in the assessment years 1968 69 and 1972 73 and
Rs. 50,0(10 in the assessment years 1969 70 and Rs. 52,000 and 53,000 for assessment years 1970 71 and
1971 72 respectively. It was contended before the learned Division Bench that since notice under section 24
B (2) of the repealed Income tax Act was not served relating to assessment year 1967 68 and under
subsection (3) of aforesaid section in respect of remaining assessment years the proceedings were void,
inoperative and illegal. The reliance was placed on the case of Acharya (supra). The learned Division Bench
came to the conclusion that since the return for assessment year 1967 68 was filed after the death of the
aforesaid M.G. Kadir the assessment framed on 30 6 1972 was illegal inasmuch as the factum of death of
aforesaid M.G. Kadir on 7 10 1970 was mentioned even in the assessment order regarding either assessment
years. The learned Bench cancelled the assessment firstly for the reason that no notices were served on LRs
for assessment years 1968 69 to 1972 73 though assessment was framed under section 23(4) of the repealed
Income tax Act. The learned Bench also took into consideration the fact that the I.T.O. treated aforesaid
assessee as individual in some years and as URF in some others. However, with due respect to the learned
Division Bench, in my humble opinion the order relating to assessment year 1967-68 has not been made on
correct and true interpretation of subsection (2) of section 24B of the repealed Act which reads as under: "24
B. Tax of deceased person payable by representative. --- --(1) Where a person dies, his executor,
administrator or other legal representative shall be liable to pay out of the estate of the deceased person to
the extent to which the estate is capable of meeting the charge the tax assessed as payable by such person,
or any tax which would have been payable by him under this Act if he had not died: (2) Where a person dies
before the expiry of the time limit prescribed under subsection (1 A) of section 22 or before he is served with
a notice under subsection (2) of section 22 or section 34, as the case may be, his executor, administrator or
other legal representative shall, on the serving of the notice under subsection (2) of section 22 or under
section 34. as the case may be, comply therewith, and the Income tax Officer may proceed to assess the
total income of the deceased person as if such executor, adiminstrator or other legal representative were
the assessee. (3) Where a person dies, without having furnished a return which he has been required to
furnish under the provisions of section 22, or having furnished a return which the Income tax Officer has
reason to believe to be incorrect or incomplete, the Income tax Officer may make an assessment of the total
income of such person and determine the tax payable by him on the basis of such assessment, and for this
purpose may by issue of the appropriate notice which would have had to be served upon the deceased person
had he survived require from the executor, administrator or other legal representative of the deceased
person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23
have required from the deceased person." From its perusal it is clear that a notice under subsection (2) of
section 22 or section 34 of the repealed Income tax Act was to be served necessarily on LRs of a deceased
assessee if the same was not served on him before his death. As I have mentioned earlier the learned Bench
itself has recorded that the notice under section 34 of the repealed Income tax Act was served on the
assessee before his death though he had not filed the return, it was not necessary for the I.T.O. to serve a
fresh notice under section 34 of the I.T. Act on the L.Rs. Moreover, it is also clear from the aforesaid order
that the return was filed after his death by M.A. Kadir one of his LRs on 18 11 1971. Thus, there was no
necessity of serving a fresh notice on aforesaid M.A. Kadir under section 34 of the Income tax Ordinance. As
such whatever view is taken I do not think that aforesaid decision helps Moulvi Niamatullah Khan under the
facts and circumstances and the law as laid down by the Income tax Ordinance applicable in the case under
discussion. 8. Now as far as the case of Amarchand (Supra) is concerned it is true that certain observations
have been made which help the contention of Moulvi Niamatullah Khan to a certain extent. But with due
respect to him they are not to be read in the isolation of facts prevailing in that case. This is a case of
partnership firm of solicitor which maintained its accounts on cash system. One of the three partners died
and his son joined the firm as a partner. The son received certain amounts which were realised in years
subsequent to the death of his father. Since the amounts pertained to the work done by the partnership
during the lifetime of the deceased partner, the I.T.O taxed aforesaid amount distributed to the heirs of the
partners and finally the matter reached the anvil of the Indian Supreme Court. It was under these facts and
circumstances that their Lordships of the Indian Supreme Court held that section 24 B of the Indian repealed
Income tax Act did not authorise the levy of tax on receipts by the legal representative of the deceased
person in the years of assessment and succeeding year of the account being the previous year in which such
person died. Their Lordships further observed that the assessee under the Act had ordinarily to be a living
person and could not be a dead person because his legal personality ceased on his death. Moulvi Niamatullah
Khan has strenuously canvassed before me that I should annul the proceedings under section 89 on the
authority of this observation but with due respect to him this observation is to be looked into not only under
the facts and circumstances as revealed above but also with reference to the context in which it was made.
After observation made above their Lordships proceeded further to remark as follows: " ....By section 24 B
the legal personality of a deceased assessee was extended 'for the duration of the entire previous year in the
course of which he died and therefore income received by him before his death and that received by his
heirs and legal representatives after his death but in that previous year became assessable to Income tax in
the relevant assessment year. The section was enacted by the legislature to bring to tax after his death,
income received during his lifetime and fill up the lacuna, which was pointed out in Ellis C, Reid v.
Commissioner of Income tax (5 I.T 100). Thus, it is clear that before their Lordships of Indian Supreme Court
the income which was distributed amongst partners and heirs of the deceased partner was that which was
received subsequent to the death of deceased partner though the work was done during his lifetime. Their
Lordships, therefore, had to interpret section 24 B in the light of cash system of accounting and with
reference to concept of previous year of assessment year which has been hallmark of tax system of this sub
continent. In the case before me, however, the tax liability had already been determined in the lifetime of
the deceased and the controversy is confined only to the levy of additional tax under section 89. With due
respect to their Lordships I respectfully agree with the aforesaid dictum of their Lordships but in my humble
opinion it revolves round its own peculiar facts. 9. Now coming to the Acharya's case (supra) it appears that
in that case the estate of Acharya went under the control and supervision of Court of Ward in 1950 and was
administered as such till July, 1955. The 1.T.O. however, framed assessment for assessment years 1952 53,
1953 54 and 1954 55 after release of the property from the Court of Ward but in the name of "successor in
interest to the late Maharaj Kumar Sitangshu Kanta Acharya Bahadur." Consequently the notice of demand
was issued to aforesaid successor in Interest but it was unsuccessfully challenged under section 27 of the
repealed Indian Income tax Act which laid down provision for cancellation of the assessment and
consequently one of the LRs of Acharya invoked the Writ jurisdiction of the Calcutta High Court. His
Lordships under the facts and circumstances of that case held that an assessment could not be made in the
name of successor in interest of the deceased assessee hence it was illegal. It was further observed by their
Lordships as under: " ....If a person finds that an assessment for income tax is made, not against him but
against a wrong person I do not see why he is bound to assist the Revenue Authorities by bringing the matter
to their notice within the period of limitation. Taxation of a citizen should be made strictly in accordance
with law and there does not seem to be any bounden duty on the part of tax payer to point out the
infirmities of the Revenue Authorities, in time to save limitation." Moulvi Niamatullah has again very
emphatically pressed this observation in service. However, with due respect to the learned counsel in his
case the assessment was already framed in the lifetime of the assessee for assessment year 1979 80 and the
dispute is regarding levy of additional tax under section 89. However, in this case the notice for additional
tax and the demand notice pursuant to the levy of additional tax were issued to the name and address of
Mst. Fakhrunnisa. In the case of Acharya (supra) it was argued that since the demand notice was served on
the duly constituted attorney of the son of the deceased it was his duty to object to the demand notice at
the right time so that the infirmity could be detected by the department before the assessment was time
barred and it was in this context that their Lordships had made aforesaid observation. However, it is
pertinent to note that his Lordship also observed as under: "It will be remembered from the assessment
orders that the assessment was not made in the name of the deceased nor was the name of the executor or
administrator or legal representative of the deceased mentioned. The provisions of section 24 B of the
Income tax Act were not satisfied. Assessment orders like this must be held to be invalid. However, as
pointed out earlier, in this case notice was issued in the name of Mst. Fakhrunnisa, the deceased assessee.
Hence, the aforesaid decision does not come to the rescue of the learned counsel of the appellant for the
simple reason that the same was made in the name of successor in interest, and not because it was recorded
in the name of deceased assessee. This case, therefore, is also distinguishable. 10. The last case relied upon
by the learned counsel for the appellant is that of Jai Prakash Singh (supra). Here the facts arc that the
assessee died on April 16, 1967 but the returns for assessment years 1965 66, 1966 67 and 1967 68 were filed
on March 17, 1970, 12 11 1970 and 27 10 1971 by all the LRs of the deceased. However, the I.T.O. issued
notices under sections 142 and 143 to 9 LRs only before framing the assessment and their Lordships of
Gouhati High Court were pleased to observe that the assessment orders were nullity being in violation of
firstly the principle of natural justice and secondly because the estate of the deceased was not fully
represented as the notices were served on 9 out of 10 LRs. In (his connection I feel very much tempted to
reproduce the following remarks made in aforesaid decision. Their Lordships observed at page 509 as under:
"...Against the assessment orders of the I.T.O. the assessee appealed before the AAC. In his order the AAC
observed that B.N. Singh died on April 16, 1967, and he was succeeded by ten legal representatives, namely
three widows, three sons and four daughters, and the fact of death and the names of his successors and legal
representatives were intimated to the I.T.O. shortly after the death of the assessee, B. N. Singh but all the
legal representatives Were not brought on record and they were not served with necessary notices before
the completion of the assessments..." It is in this context that aforesaid conclusion was arrived at by their
Lordships. It is thus clear that in this case the names of LRs were intimated to the I.T.O. shortly after the
death of the assessee. However, in the case of Kadir & Co. (supra) and Acharya, the names of LRs were not
furnished to the I.T.O. As far as the case of Amarchand (Supra) is concerned, in that case the name of LR
was supplied but the question involved was altogether different as discussed above. It is also clear that in all
aforesaid cases the interpretation of section 24 B of the repealed income tax Act of Pakistan and India came
for interpretation thus the authorities cited at bar do not deal with the question as to on whose shoulder the
burden of bringing the LRs of a deceased assessee rests. I would, therefore, have to answer this issue with
reference to and in the context of the general pattern of the Income tax Ordinance. 11. If I peruse various
provisions of the income tax Ordinance I find that the' basic duty of an I.T.O. is to assess the tax and recover
it strictly according to law. He has been incidentally called upon to decide certain disputes, which may arise
either in assessment of the tax or recovery thereof. Rule l06 of the Income tax Rules has given him power to
dispose of such type of disputes. The question regarding the LRs of deceased assessee may also constitute
such type of disputes and an I.T.O. may be required to determine as to who are and who are not the LRs of a
deceased assessee. Subsection (4) of section 74, however, has provided him with a yardstick for settling this
issue. In other words he could recover tax from LRs to the extent of the value of estate, which comes in their
hands. Thus, it is the duty of an I.T.O. to look into the value of an estate which came in the hands of that LIZ
from whom he wants to recover the tax. Except this legal obligation there is nothing in the Income tax
Ordinance or the Rules framed thereunder which may require an I.T.O. to embark on an enquiry or
investigation in order to find out the names of LRs of a deceased assessee. Even Civil Procedure Code makes
it obligatory for the plaintiff or the defendant to give the names of their LRs while filing their plaint or
written statement (please see (O.VII.R.26 & O.VIII. R.13). Previously it was the duty of the LRs of a deceased
plaintiff or defendant to apply for substitution of their names failing which the suit stood abated. Now if the
legislature has not cast any burden on the Civil Courts under the provisions of Civil Procedure Code how can
it be laid down that it is the duty, of the Income tax Officer to find out the names of LRs of a deceased
assessee?' Who has succeeded to the estate of a deceased assessee involves investigation into intricate and
subtle issues, which arise out of various Succesion Laws. An Income tax Officer is neither trained nor has
enough experience to delve into realm of Civil Law. Whether or not a particular person is an LR of a
deceased assessee is a question which is to be adjudicated upon by a competent Civil Court. The I.T.O. is
required only to ensure, while recovering tax from a particular LR, that the amount sought to be recovered
from such person does not exceed the value of assets, which he inherited from the deceased assessee. Let
me also point out that whether a person is or is not an LR of deceased assessee is a question which is within
the special knowledge of the LR concerned. The I.T.O. can neither be expected to know the names of LRs,
particular LRs of a Muslim assessee which consists of several types of near and distant heirs as well as other
persons who could be called LRs. As such, it is my considered opinion that it is for the LRs of a deceased
assessee that they should inform the I.T.O. about their names and the extent of estates of the deceased in
their hands so that he can proceed according to law. There might be cases in which certain LRs may raise
dispute about right to inherit or hold the estate of the deceased assessee. If such, disputes arise before the
I.T.O. he must not look into them and advise the parties to invoke the jurisdiction of Civil Court. As pointed
out earlier, he would restrict his power of recovery to the extent of value of estate in his hands. It is
important to note that if the contention of Moulvi Niamatullah Khan is accepted we would be casting the
burden on an I.T.O. which has not been placed even on a Civil Court of appropriate jurisdiction though it is
specialised in disputes pertaining to succession. Moreover, we would also be asking an I.T.O. to perform a
job which would be very difficult if not impossible for him to perform as he has neither been trained nor has
required knowledge. I am, therefore, not prepared to accept the contention of Moulvi Niamatullah Khan. As
is clear from the case of Jai Prakash Singh (supra) it were the LRs of the deceased assessee who
communicated their names to the Income tax Officer. I think that it must be done by the LRs themselves. 12.
Although I have started my discussion with Question No. 2 yet it has not been finally answered. Now in the
light of discussion made above since I have arrived at the conclusion that it is for the LRs of an assessee to
communicate to the assessing officer concerned their names themselves, therefore, under the facts and
cicumstances of these appeals it appears that the LRs or LR as the case might have been, of the appellant
committed default in communicating their names to the I.T.O. when they filed the return on 30 10 1986 for
the assessment year 1986 87 in the name of Late Mst. Fakhrunnisa and on 10 6 1987 when they paid tax for
and on behalf of late Fakhrunnisa. On the contrary their action of filing return in the name of Mst.
Fakhrunnisa and paying tax in her name provides sufficient material to the I.T.O. to believe that she was a
living person. Thus, whatever view is taken the I.T.O. appears to have no option while issuing notice under
section 89 to address it to Mst. Fakhrunnisa on her last known address. 13. However, before proceeding
further I want to deal with another point raised by the learned counsel. He vehemently argued that since the
notice under section 89 was issued in the name of dead assessee it was void ab initio. But with due respect
to the learned counsel let me point out that aforesaid argument stems from Civil Law where a party brings a
civil action against another person. In such cases it is the duty of a party to sue a living person and if he dies
during the pendency of legal proceeding he must bring on record the LRs of such deceased in order to sustain
such legal action provided the cause of action against them has survived. However, if he fails to do so his
action abates. Similarly, if he sues a dead person such proceedings are deemed void ab initio. On the other
hand the Income tax proceedings assume, altogether a different character if the income taxi has been
determined before the death of an assessee. In such cases it becomes a charge on property of an assessee
and the law requires an I.T.O. to follow the estate of the deceased assessee and tax it irrespective of the
legal right of a; person who holds it. As discussed earlier, it is this principle, which has been; enacted under
section 74 of the Income tax Ordinance. Thus under the facts and circumstances of these appeals when
I.T.O. issued notice under section 89 in the name of a deceased assessee and served it on the last known
address he acted quite legally as he was following estate of the deceased in absence of the particulars of the
LRs which were deliberately withheld. Once he succeeded in serving it on the last known address of the
deceased which was disclosed to the I.T.O. even after her death in the returns for subsequent years and m
the challan, he threw the ball in the Court of LRs and made it obligatory on them to appear' before him. Le'
me mention here that even in the memorandum of appeal presented before the learned AAC or even before
this Tribunal the name of Mst. Fakhrunnisa together with her address has been given and the names of LRs
have again been withheld. I am therefore of the view that, that under the facts and circumstances of this
appeal the notice issued and served under section 89 was, not void ab initio. Let me however hastily add
that in certain cases notice issued against a dead person might be held to be void ab initio, and this issue
would be discussed at length at some appropriate time in some appropriate case. For the purposes of this
appeal I hold that neither it was the duty of the I.T.O. to look for the LRs of the deceased and then bring
them on record nor the notice issued under section 89 was void ab initio. 14. However, before concluding I
feel very much tempted to refer to the case of Acharya (supra). In my humble opinion that case is
distinguishable firstly because in that case the tax was determined in the name of successor in interest
whereas in the instant case it has been determined in the name of the assessee who was very much alive at
the relevant time. The second distinguishing feature in the case of Acharya (supra) is that in that case the
notices were issued in the name of successor in interest who was unidentifiable person. On the other hand in
the instant case the notice we to the last known address of the deceased assessee in her name as filing of
the return and payment of tax in her name was enough to make the I.T.O. believe that she was alive.
Moreover, even if the I.T.O. knew that she was dead he was left with no alternative but to follow the estate
of the deceased as names of LRs were not disclosed to him. Thus, it is the LRs themselves who like to play
the game of hide and seek with the Income tax 'Officer and should blame themselves for it. Let me,
however, point out that even if there was a mistake in the notice it is protected by section 155 of the
Incometax Ordinance unless it would be shown that such mistake resulted in substantial nature of mistake
prejudicially affecting LRs of the appellant but neither there is anything on record to show such prejudice
nor any argument has been advanced to establish it. 15. I would, therefore, under the facts and
circumstances of these appeals once again answer question No. 2 against the appellant. However, before
parting with this issue let me point out that the imposition of additional tax is nothing but a continuation of
the assessment proceedings. In section 89 it has been laid down that additional tax would be charged on an
assessee who fails to pay whole or any part of the tax charged on him. If looked into the definition of word
"assessee" as contained in subsection (6) of section 2 of the Income tax Ordinance we find that every person
is to be deemed an assessee if any tax is payable by him. Similarly if we look into the definition of tax as
contained in clause (43) of the section 2 of the Income tax Ordinance it includes the additional tax also.
Thus, if both these H definitions are interpreted in view of the dictum of their Lordships of Indian Supreme
Court as propounded in Amarchand (supra) case it would be clear that subsection (1) of section 74 would
apply regarding additional tax and the additional tax would also he deemed to be the tax which late Mst.
Fakhurunnisa was liable to pay and her legal representative shall be liable to pay it. I am also' fortified in my
conclusion by provisions of section 89 themselves because it has been specifically laid down therein that the
additional tax shall be payable from 1 the date on which it becomes due and till such date it is paid. Thus,
section 89 itself has indicated that the proceedings under it are continuation of income tax` proceedings. I,
therefore, answer this question against the appellant for this reason as well. 16. Now this takes me to the
3rd question. From the perusal of the grounds of appeal taken before the learned CIT(A) it appears that the
appellant had taken the plea that additional tax being interest cannot be charged under the Constitution
after the decision of the High Court of Sindh. However, from perusal of the impugned order it appears that
the learned CIT (A) has disposed of both the appeals in a hurry. He had recorded a cryptic order of about 13
lines. Ordinarily I would have presumed that the learned counsel for the appellant might not have pressed
this issue before him; but since the learned counsel for the appellant has stated at Bar that he had raised
this issue and secondly because the order of the learned CIT(A) is a summary order, I feel very much
constrained to set aside the impugned order and send the matter back to the learned CIT (A) for recording
his finding on question No. 3 as framed above so that both the I.T.O. and the learned counsel for the
appellant may express their views before him, and we could also have the benefit of his opinion if appeal is
filed again by either of the parties and so I do. 17. However, before parting with this appeal let me
specifically mention that all observations remarks and findings made above should be read in context. of and
with reference to the peculiar facts of this appeal. 18. In view of the discussion made above both the
appeals stand disposed of in the manner as indicated above.

Order accordingly