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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5802 OF 2005

SHABINA ABRAHAM & ORS. … APPELLANTS

VERSUS

COLLECTOR OF CENTRAL EXCISE  & CUSTOMS        ...RESPONDENT

J U D G M E N T  

R.F. Nariman, J.

1. “Nothing is certain except death and taxes.”  Thus spake

Benjamin Franklin in his letter of November 13, 1789 to Jean

Baptiste Leroy.  To tax the dead is a contradiction in terms.  Tax

laws are made by the living to tax the living.   What survives the

dead person is what is left behind in the form of such person’s

property. This appeal raises questions as to whether the dead

person’s property, in the form of his or her estate, can be taxed

without  the  necessary  machinery  provisions in  a  tax  statute.

The precise question that arises in the present case is whether

an assessment proceeding under the Central Excises and Salt

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Act, 1944, can continue against the legal representatives/estate

of a sole proprietor/manufacturer after he is dead.  The facts of

the case are as follows.  

2. One  Shri  George  Varghese  was  the  sole  proprietor  of

Kerala Tyre and Rubber Company Limited.  By October 1985,

this  proprietary  concern  had  stopped  manufacture  and

production  of  tread  rubber.  By  a  show  cause  notice  dated

12.6.1987, for the period January 1983 to December 1985, it

was alleged that the assessee had manufactured and cleared

tread rubber from the factory premises by suppressing the fact

of  such  production  and  removal  with  an  intent  to  evade

payment of excise duty.  The provisions of Section 11A, as they

then stood, of the Central Excises and Salt Act were invoked

and  duty  amounting  to  Rs.74,35,242/-  was  sought  to  be

recovered  from  the  assessee  together  with  imposition  of

penalty for clandestine removal.   

3. On 14.3.1989, the said Shri George Varghese died.  As a

result of his death, a second show cause notice was issued on

18.10.1989 to his wife and four daughters asking them to make

submissions with regard to the demand of  duty made in the 2

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show  cause  notice  dated  12.6.1987.   By  their  reply  dated

25.10.1989,  the said legal  heirs  of  the deceased stated that

none of them had any personal association with the deceased

in his proprietary business and were not in a position to locate

any business records.   They submitted that  the proceedings

initiated  against  the  deceased  abated  on  his  death  in  the

absence of any provision in the Central Excises and Salt Act to

continue assessment proceedings against a dead person in the

hands of the legal representatives.  The said show cause notice

was, therefore, challenged as being without jurisdiction.  

4. As the Central  Excise Authorities posted the matter  for

hearing and refused to pass an order on the maintainability of

the show cause notice alone, the legal heirs approached the

High Court under Article 226 of the Constitution by filing a Writ

Petition in January, 1990.  The learned single Judge of the High

Court quashed the proceedings against the legal heirs stating

that  the  Central  Excises  and  Salt  Act  did  not  contain  any

provisions  for  continuing  assessment  proceedings  against  a

dead  person.   Against  this,  revenue  went  in  appeal.   The

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Division Bench of the High Court of Kerala reversed the single

Judge’s judgment.  

5. Shri Rajshekhar Rao, learned counsel appearing for the

legal heirs made submissions before us with great clarity and

persuasiveness.  He submitted that a reading of Sections 2(f),

(3), Section 4(3)(a), Section 11 and 11A as they stood at the

relevant  time  would  show  that  unlike  the  provisions  of  the

Income Tax Act, there is no machinery provision in the Central

Excises  and Salt  Act  for  continuing assessment  proceedings

against  a  dead  individual.   He  stressed  the  fact  that  an

assessee under the said Act means “the person” who is liable

to pay the duty of excise under this Act and further stressed the

fact that in cases of short levy, such duty can only be recovered

from a person who is chargeable with the duty that has been

short  levied.   He  further  invited  our  attention  to  the  Central

Excise Rules and Rules 2(3) and 7 in particular to buttress his

submission  that  there  is  no  machinery  provision  contained

either  in  the Act  or  in  the Rules to  proceed against  a  dead

person’s  legal  heirs.   He  cited  certain  judgments  before  us

which we will advert to later on in this judgment.   

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6. Shri A.K. Panda, learned senior advocate appearing on

behalf of the revenue contended that a close reading of Section

11 of the Central Excises and Salt Act will indicate that sums

are recoverable from an assessee by an attachment and sale of

excisable goods belonging to such assessee and further that if

the amount so recoverable falls short, it can be recovered from

the person himself as an arrear of land revenue.  Inasmuch as

a  dead  man’s  property  can  be  attached  and  sold  and

proceeded against, it is clear that the necessary machinery is

contained  in  the  Central  Excises  and  Salt  Act.  His  further

submission is that Section 11A of the said Act is a machinery

provision  and,  therefore,  the  rule  to  be  applied  is  that  that

construction  should  be  preferred  which  makes  a  machinery

Section  workable.   He  also  referred  us  to  the  definition  of

“person” in Section 3(42) of the General Clauses Act to buttress

his submission that  a legal  representative would be included

within a “person” as so defined.  He referred us to Section 6 of

the  said  Act  dealing  with  registration  and  argued  that

registration of a person makes him a legal entity liable to be

assessed as such.   His other submission is that the general

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principle, namely, that a cause of action abates when a person

who institutes a proceeding dies is not applicable in the present

case and cited various judgments before us in support of the

said principle.  He also submitted that the position under the

Income Tax Act would be entirely different as income tax is a

tax leviable on a person whereas a duty of excise is leviable on

manufacture  of  goods.  He also  cited  a  number  of  decisions

which will be dealt with in the course of this judgment.  

7. We have heard learned counsel for the parties.  Before

entering  into  a  discussion  on  the  merits  of  the  case,  it  is

necessary to set out the statutory provisions contained in the

Central  Excises and Salt  Act  at  the relevant  time, which are

given below:-  

2(f) "manufacture"  includes  any  process  incidental or  ancillary  to  the  completion  of  a  manufactured product; and (i) In relation to tobacco includes the preparation

of cigarettes, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco or snuff, (ia)  in  relation  to  manufactured  tobacco, includes  the  labeling  or  re-labelling  of containers and repacking from bulk packs to retail  packs  or  the  adoption  of  any  other treatment to render the product marketable to the consumer.  

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(ii) In relation to salt, includes collection, removal, preparation, steeping, evaporation, boiling, or any  one  or  more  of  these  processes,  the separation  or  purification  of  salt  obtained  in the manufacture of saltpeter, the separation of salt  from earth  or  other  substance so as to produce elementary salt,  and the excavation or  removal  of  natural  saline  deposits  or efflorescence;

(iii) In relation to patent or proprietary medicines, as  defined  in  Item  No.  14-E  of  the  first Schedule  and  in  relation  to  cosmetics  and toilet preparations as defined in Item No.14-F of that  Schedule,  includes the conversion of powder into tablets or capsules, the labeling or  relabeling  of  containers  intended  for consumers and repacking from bulk packs to retail  packs  or  the  adoption  of  any  other treatment to render the product marketable to the consumers;

(iv) In  relation  to  goods  comprised  to  Item No.18-A of the First Schedule, includes sizing, beaming,  warping,  wrapping,  winding  or reeling,  or  any  one  or  more  of  these processes, or the conversion of  any form of the  said  goods  into  another  form  of  such goods; And  the  word  “manufacturer”  shall  be construed  accordingly  and  shall  include  not only a person who employs hired labour in the production or manufacture of excisable goods, but  also  any  person  who  engages  in  their production  or  manufacture  on  his  own account.”

3. Duties  specified in  the First  Schedule  to  be levied.  (1)  There  shall  be  levied  and  collected  in such manner as may be prescribed duties of excise on  all  excisable  goods  other  than  salt  which  are produced or manufactured in India and a duty on

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salt manufactured in, or imported by land into, any part of India as, and at the rates set forth in the First Schedule.

4.  Valuation  of  excisable  goods  for  purposes  of charging of duty of excise. –  (1)  Where  under  this  Act,  the  duty  of  excise  is chargeable on any excisable goods with reference to  value,  such  value  shall,  subject  to  the  other provisions of this section be deemed to be –  (a) the normal price thereof, that is to say, the price at  which  such  goods  are  ordinarily  sold  by  the assessee  to  a  buyer  in  the  course  of  wholesale trade for delivery at the time and place of removal, where  the  buyer  is  not  a  related  person  and the price is the sole consideration for the sale:”

(4) For the purposes of this section, -  (a)  “assessee” means the person who is liable to pay the duty of excise under this Act and includes his agent;”

11.  Recovery  of  sums  due  to  Government.  -  In respect  of  duty  and  any  other  sums of  any  kind payable to the Central Government under any of the provisions  of  this  Act  or  of  the  rules  made thereunder,  the  officer  empowered  by  the  Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, to levy such duty  or  require  the  payment  of  such  sums  may deduct  the  amount  so  payable  from  any  money owing to the person from whom such sums may be recoverable or due which may be in his hands or under  his  disposal  or  control,  or  may recover  the amount by attachment and sale of excisable goods belonging  to  such  person;  and  if  the  amount payable  is  not  so  recovered  he  may  prepare  a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person

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resides  or  conducts  his  business  and  the  said Collector,  on  receipt  of  such  certificate,  shall proceed to recover from the said person the amount specified  therein  as  if  it  were  an  arrear  of  land revenue. 11A. Recovery  of  duties  not  levied or  not  paid  or short levied or short paid or erroneously refunded.-  (1) When any duty of excise has not been levied or  paid  or  has  been  short-levied  or  short-paid  or erroneously refunded, a Central Excise Officer may, within  six  months  from  the  relevant  date,  serve notice on the person chargeable with the duty which has  not  been  levied  or  paid  or  which  has  been short-levied or short-paid or to whom the refund has erroneously  been  made,  requiring  him  to  show cause why he should not pay the amount specified in the notice:  

Provided  that  where  any  duty  of  excise  has  not been  levied  or  paid  or  has  been  short-levied  or short-paid  or  erroneously  refunded  by  reason  of fraud,  collusion  or  any  wilful  misstatement  or suppression of facts, or contravention of any of the provisions  of  this  Act  or  of  the  rules  made thereunder with intent to evade payment of duty, by such  person  or  his  agent,  the  provisions  of  this sub-section shall have effect, as if for the words "six months", the words "five years" were substituted.”  

Rule 2(3) and Rule 7 of the Central Excises Rules, 1944, read

as under:  

“2.  Definitions.—In  these  rules,  unless  there  is anything repugnant in the subject or context—

(3) "assessee" means any person who is liable for payment  of  duty  assessed and also includes any producer or manufacturer of excisable goods or a

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registered person of a private warehouse in which excisable goods are stored;

7. Recovery of duty.-  Every person who produces, cures or manufactures any excisable goods, or who stores such goods in  a warehouse,  shall  pay the duty or duties leviable on such goods, at such time and  place  and  to  such  persons  as  may  be designated,  in,  or  under  authority  of  these  rules, whether  the  payment  of  such  duty  or  duties  is secured by bond or otherwise.

Provided  that  nothing  contained  in  this  rule  shall apply to molasses produced in a khandsari  sugar factory.

Provided  further  that  in  respect  of  goods  falling under  Chapter  62  of  the  First  Schedule  to  the Central  Excise  Tariff  Act,  1985  (5  of 1986), manufactured on job-work, the provisions of these rules shall apply subject to the provisions of rule 7AA.”

8. On a reading of the aforesaid provisions, it is clear that

Shri Rajshekhar Rao, learned counsel appearing on behalf of

the  appellants  is  correct  –  there  is  in  fact  no  separate

machinery  provided  by  the  Central  Excises  and  Salt  Act  to

proceed against a dead person when it comes to assessing him

to tax under the Act.  

9. The position under the Income Tax Act, 1922 was also the

same  until  Section  24B  was  introduced  by  the  Income  Tax

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(Second Amendment) Act of 1933.  Prior to the introduction of

the aforesaid Section, the Bombay High Court had occasion to

deal with a similar question in Commissioner of Income Tax,

Bombay v. Ellis C. Reid, A.I.R. 1931 Bombay 333.  A Division

Bench  of  the  Bombay  High  Court  noticed  the  definition  of

“assessee”  contained  in  Section  2(2)  of  the  1922 Act  which

definition  stated  that  “‘assessee’  means  a  person  by  whom

income tax is payable”.  The Division Bench went on to say that

the  words  “or  by  whose  estate”  are  conspicuous  by  their

absence in the said definition.  The Division Bench then went

on  to  say  that  there  appears  to  be  nothing  in  the  charging

Section to suggest that a man who has once become liable to

tax can avoid payment of tax by dying before such tax has been

assessed or paid.  However, the Act has to contain appropriate

provisions for continuing an assessment and collecting tax from

the estate of a deceased person which was found to be absent

in the 1922 Act before it was amended by insertion of Section

24B.   Having noticed various provisions of  the said Act,  the

Division Bench went on to say:-

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“These are, I think, the only material provisions, of the Act. It is to be noticed that there is throughout the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional. It must have been present to the mind of  the  legislature  that  whatever  privileges  the payment of Income-tax may confer, the privilege of immortality  is  not  amongst  them.  Every  person liable  to  pay  tax  must  necessarily  die  and  in practically  every  case,  before  the  last  installment has  been  collected,  and  the  legislature  has  not chosen to  make any  provisions  expressly  dealing with  assessment  of,  or  recovering  payment  from, the estate of a deceased person. In order that the Government  may  succeed  and  the  assessment made in this case may be held legal  I  think,  one must  do  a  certain  amount  of  violence  to  the language of Section 23(4); I think one must either do a certain amount  of  violence -  I  should say a considerable amount of violence - to the language of  Section  27,  or  else  hold  that  the  privilege conferred  on  a  living  person  assessed  under Section 23(4) of getting the assessment set aside is not  to  be  enjoyed  by  the  estate  of  a  deceased person - a distinction for which I can see no logical reason. One must also construe Section 29 so as to give to  the word "assessee"  one meaning in  one place and another meaning in another place.

In my judgment, in construing a taxing Act the Court  is  not  justified  in  straining  the  language  in order to hold a subject liable to tax. If the legislature intends to assess the estate of a deceased person to tax charged on the deceased in his lifetime, the legislature must provide proper machinery and not leave  it  to  the  Court  to  endeavor  to  extract  the appropriate  machinery  out  of  the  very  unsuitable language of the statute. We are not concerned with the case which may arise of the death of a person

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after  assessment  but  before  payment.”  (at  page 335)

10. Given the aforesaid decision of the Bombay High Court,

the legislature was quick to amend the Income Tax Act, 1922 by

inserting Section 24B which reads as follows:-

Section 24B : 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 publication of the notice referred to in sub-section (1) of section 22 or  before  he  is  served  with  a  notice  under sub-section (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 sub-section (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, administrator 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

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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  the  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.”

11. This  judgment  of  the  Bombay  High  Court  has  been

affirmed in two judgments of this Court. In  Commissioner of

Income Tax, Bombay City I v. Amarchand N. Shroff, [1963]

48 I.T.R. 59, this Court referred with approval to  Ellis C. Reid

and held:-

“The correct position is that apart from section 24B no  assessment  can  be  made  in  respect  of  the income of  a  person  after  his  death.  See  Ellis  C. Reid v. Commissioner of Income-tax. In that case, and  that  was  a  case  before  section  24B was enacted, a person was served with a notice under section  22(2) of  the  Income-tax  Act  but  no  return was made within the period specified and he died. It was held that no assessment could be made under section 23(4) of the Act after his death. At p.106 it was observed:-

"It is to be noticed that there is throughout the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult  to  suppose  the  omission  to  have  been unintentional.   It  must  have  been  present  in  the

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mind of the legislature that whatever privileges the payment of income-tax may confer, the privilege of immortality  is  not  amongst  them.  Every  person liable  to  pay  tax  must  necessarily  die  and,  in practically  every  case,  before  the  last  instalment has  been  collected,  and  the  legislature  has  not chosen to  make any  provisions  expressly  dealing with assessment of, or recovering payment from the estate of a deceased person".

The individual assessee has ordinarily to be a living person and there can be no assessment on a dead person and the assessment is a charge in respect of the income of the previous year and not a charge in respect of the income of the year of assessment as measured by the income of the previous year. Wallace  Brothers  &  Co.  Ltd.  v  Commissioner  of Income-tax.  By  section  24B the  legal representatives  have,  by  fiction  of  law,  become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was  enacted.  As  was  observed  by  this  Court  in Bengal  Immunity  Co.  Ltd.  v.  State  of  Bihar  legal fictions are only for a definite purpose and they are limited to the purpose for  which they are created and should not be extended beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub sections of section 24B and cannot be extended further than the liability for  the income received in  the previous year.”  (at page 66)

12. Similarly, in  Commissioner of Income Tax, Bombay v.

James Anderson, [1964] 51 I.T.R. 345, this Court referred with

approval to the judgment in  Ellis C. Reid’s case  and further

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held that even after Section 24B was enacted tax cannot be

assessed  on  receipts  on  the  footing  that  it  is  the  personal

income of the legal representative. This Court held:-

“It was then urged that apart from section 24B, the legal  representatives  of  a  deceased  person  also represent  his  estate  in  the  matter  of  taxation  of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate.  Counsel  did  not  rely  upon  any  specific provision of the Act in support of the contention, and merely  asserted  that  the  Act  seeks  to  tax  all assessable  incomes,  and  income  received  by  a legal  representative  of  the  estate  of  a  deceased person should not be permitted to escape tax to the detriment of  public revenue. But  if  the Legislature has failed to set up the procedure to assess such income, the Courts cannot supply it. The expression "assessee"  in  section  2(2) as  substituted  by  the Indian Income Tax (Amendment) Act, (25 of 1953), with effect from April 1, 1952, means a person by whom  income-tax  or  any  other sum  of  money  is payable under the Act, and includes every person in respect of whom any proceeding and this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due  to  him.  By  section  3 where  income-tax  is chargeable  for  any  year  at  any  rate  or  rates prescribed by the Act of the Central Legislature, tax at  that  rate  shall  be  charged  for  that  year  in accordance with and subject to the provisions of the Act  in respect of  the total  income of  the previous year  of  every  individual,  Hindu  undivided  family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The  charge  to  income-tax  has  therefore  to  be  in

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accordance with and subject to the provisions of the Act, and the Legislature has not provided that the income  received  by  a  legal  representative  which would, but for the death of the deceased, have been received  by  such  deceased  person,  is  to  be regarded  for  the  purpose  of  assessment  as  the personal  income  of  the  legal  representative.  To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act.” (at page 352)

13. In Commissioner of Income Tax, Bombay v. Darabsha

Nasarwanji Mehta, A.I.R. 1935 Bombay 167, the Bombay High

Court  held  that  Section  24B  of  the  1922  Act  was  not

retrospective and stated that as Avabai N. Mehta died before

the said Act  came into force and before she had made any

return, her estate was not liable to be assessed to tax particular

regard being had to the opening words of Section 24B which

state  “where a  person dies”  which are  words in  the present

tense.  

14. Pursuant  to  the  12th Law  Commission  Report,  a  new

Income Tax Act was passed in 1961 which contained elaborate

provisions for assessment of deceased persons after they die.

The anomalies left by Section 24B of the 1922 Act, as pointed

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out  in  the  two Supreme Court  judgments  referred  to  above,

were sought to be rectified in the new provisions contained in

the 1961 Act.  Sections 159 and 168 of the Act are apposite in

this regard and read as follows:-

“159. (1)  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. (2)  For  the  purpose  of  making  an  assessment (including  an  assessment,  reassessment  or recomputation under section 147) of the income of the deceased and for  the purpose of  levying any sum  in  the  hands  of  the  legal  representative  in accordance with the provisions of sub-section (1),— (a)  any  proceeding  taken  against  the  deceased before  his  death  shall  be  deemed  to  have  been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b)  any proceeding which could  have been taken against  the deceased if  he had survived, may be taken against the legal representative; and (c)  all  the  provisions  of  this  Act  shall  apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act,  be deemed to be an assessee. (4)  Every  legal  representative  shall  be  personally liable for any tax payable by him in his capacity as legal  representative  if,  while  his  liability  for  tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of

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the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of or parted with. (5) The provisions of sub-section (2) of section 161, section 162, and section 167, shall, so far as may be  and  to  the  extent  to  which  they  are  not inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this section  shall,  subject  to  the  provisions  of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability.”

“168.  (1)  Subject  as  hereinafter  provided,  the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor,— (a)if  there  is  only  one  executor,  then,  as  if  the

executor were an individual; or (b)if there are more executors than one, then, as if

the executors were an association of persons; and for the purposes of this Act, the executor

shall  be  deemed  to  be  resident  or  non-resident according as the deceased person was a resident or  non-resident  during the previous year  in  which his death took place. (2) The  assessment  of  an  executor  under  this section  shall  be  made  separately  from  any assessment that may be made on him in respect of his own income. (3) Separate assessments shall  be made under this section on the total income of each completed previous year or part thereof as is included in the period  from the  date  of  the  death  to  the  date  of complete  distribution  to  the  beneficiaries  of  the estate according to their several interests.

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(4) In computing the total income of any previous year under this section, any income of the estate of that  previous  year  distributed  to,  or  applied  to  the benefit  of,  any specific  legatee  of  the estate  during that previous year shall be excluded;  but the income so excluded shall  be included in the total income of the previous year of such specific legatee.”

15. It  will  be  noticed  that  under  Section  159(2),  for  the

purpose  of  making  any  assessment,  any  proceeding  taken

against  the deceased before his  death is  by deeming fiction

deemed to  have been taken against  his  legal  representative

and may be continued against the legal representative from the

stage  at  which  it  stood  on  the  date  of  the  death  of  the

deceased.  Further, the legal representative under sub-section

(3)  of  159  is  again  by  deeming  fiction  deemed  to  be  an

assessee himself. However, the liability of such representative

is  limited  only  to  the  extent  to  which  the  estate  left  by  the

deceased is capable of meeting the tax liability subject to the

contingencies mentioned in sub-sections (4) and (5) of Section

159.   

16. Similarly, under Section 168, where the assessee has left

a  Will,  the  income  of  the  estate  of  the  deceased  person

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becomes chargeable in the hands of the executor of such will.

This is made clear by Section 168.  

17. It will be seen that the definition of “assessee” contained

in Section 4(3)(a) of the Central Excises and Salt Act is similar

to the definition of assessee contained in the Income Tax Act,

1922.  Under that Act, as we have already seen, an assessee

means “a person by whom income tax is payable.”  Under the

Central Excises and Salt Act, an assessee means “the person

who is liable to pay the duty of  excise under this Act”.   The

present tense being used, it is clear that the person referred to

can only be a living person as was held in Ellis C. Reid (supra).

Further, the only extension of the definition of “assessee”  under

the Central Excises and Salt Act is that it would also include an

assessee’s agent, which has nothing to do with the facts of the

present  case.   It  is  well  settled that  a “means and includes”

definition is exhaustive in nature and that there is no scope to

read anything further into the said definition.  

18. As has been correctly pointed out by learned counsel for

the appellants, the notice that is served under Section 11A is

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only on the person chargeable with excise duty, which takes us

back to “assessee” as defined.   

19. Learned counsel for the revenue relied upon Section 11 of

the Act, which, according to him, indicates that an attachment

and sale of excisable goods can belong to a dead person and

such  attachment  and  sale  can  continue  notwithstanding  the

death of such person.  Apart from the fact that there is nothing

about dead persons in Section 11, Section 11 is limited only to

recovery of sums that are due to the Government.  The very

opening words in Section 11 show that duty and other sums

must first be payable to the Central Government under the Act

or the rules.  If such sums are not “payable” then the provisions

of the Section do not get attracted at all.  We have seen that the

Act contains no machinery provisions for proceeding against a

dead person’s legal heirs, such as are contained in the Income

Tax  Act.   Obviously, therefore,  duty  and  other  sums  do  not

become “payable” without such machinery provisions.  Further,

Section 11 deals with modes of recovery of  tax payable and

does  not  deal  with  the  subject  matter  at  hand  –  namely

machinery provisions for assessment in the hands of the estate

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of a dead person and, therefore, does not have much bearing

on  the  matter  in  issue  in  the  present  case.  The  argument,

therefore, as to the insertion of the proviso to Section 11 by an

Amendment Act of 2004 so as to provide that if a person from

whom  some  recoveries  are  due  transfers  his  business  to

another person, then the excisable goods in the possession of

the transferee can also be attached and sold  again leads us

nowhere.  In fact learned counsel for the appellants also relied

on this proviso to argue that the Legislature’s need to add the

proviso shows that nothing can be read into the Central Excises

and Salt Act by implication.  As has been stated above, Section

11 deals with an entirely different situation and the addition of

the proviso therein is not  of  much significance as far  as the

question we have to answer is concerned.

20. Learned  counsel  for  the  revenue,  however,  contended

that the principles applied in the case of the Income Tax Act

should not be applied to the Central Excises and Salt Act as the

latter Act is a tax on manufacture of goods and not on persons.

We are afraid this argument cannot be countenanced in view of

this  Court’s  judgment  in  State  of  Punjab v.  M/s Jullunder

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Vegetables Syndicate, [1966] 2 S.C.R. 457. In that judgment,

the question before  this  Court  was whether  a  dissolved firm

could be assessed to sales tax under the East Punjab General

Sales Tax Act, 1948, with respect to its pre-dissolution turn over.

After  analyzing  the East  Punjab General  Sales  Tax  Act,  this

Court held:-

“The scheme of the Act is a simple one. A firm is a dealer; the said dealer is assessable to tax on its turnover, if its turnover exceeds the prescribed limit. It cannot do business while being liable to pay tax under  the Act  without  getting itself  registered and possessing a registration certificate. It is assessed to tax  under  Section 11 of  the Act  in  the manner prescribed  thereunder.  If  it  discontinues  its business, it shall within the specified time inform the prescribed  authority  accordingly.  A dealer  and  its partners are jointly and severally responsible to pay the  tax  assessed  on  the  dealer.  But  there  is  no provision  expressly  empowering  the  assessing authority to assess a dissolved firm in respect of its turnover  before  its  dissolution.  The  question  is whether  such  a  power  can  be  gathered  by necessary implication from the other provisions of the Act.”  (at page 461)

The Court went on to say:

“Though under the partnership law a firm is not a legal entity but only consists of individual partners for the time being, for tax law, income-tax as well as sales-tax,  it  is  a  legal  entity.  If  that  be  so,  on dissolution,  the  firm  ceases  to  be  a  legal  entity. Thereafter, on principle, unless there is a statutory

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provision permitting the assessment of a dissolved firm, there is no longer any scope for assessing the firm which ceased to have a legal existence. As in the present case, admittedly, the firm was dissolved before the order of assessment was made, the said order was bad.” (at page 462)

The Court  went  on to consider  various High Court  decisions

and ultimately concluded as follows:-

“Strong reliance was placed upon two judgments of this  Court.  This  Court  in  C.A.  Abraham  v. Income-tax  Officer,  Kottayam,  speaking  through Shah, J., held that S.44 of the Income-tax Act set up a machinery for assessing the tax liability of firms which have discontinued their  business.  This was followed  by  this  Court  again  in  Commissioner  of Income-tax,  Madras v. S.V. Angidi  Chettiar. These two decisions are of no help to the Revenue in the present case. Indeed, in a sense they are against it. The Income-tax Act contains an express provision for assessing a dissolved firm. Indeed, but for that provision no assessment could be made under that Act on dissolved firms.

For  the  foregoing  reasons  we hold  that  the  High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the Act. The High Court has given a correct answer to the question propounded for its decision.” (at page 464)

21. This judgment is a complete answer to the contention of

learned counsel  for  the revenue inasmuch as on a parity  of

reasoning, sales tax is not a personal tax but a tax on the sale

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of goods.  Nevertheless, this Court held that in the absence of

any machinery provisions to assess and collect sales tax from a

deceased person – in that case it was a dissolved partnership

firm – all proceedings against such deceased person/dissolved

firm abate.  The aforesaid judgment has been followed by this

Court  in  Khushi  Ram  Behari  Lal  &  Co. v.  Assessing

Authority,  Sangrur,  (1967)  19  STC  381  and  in  Additional

Tahsildar, Raipur v. Gendalal, (1968) 21 STC 263.  

22. Learned counsel for the revenue, however, strongly relied

upon M/s. Murarilal Mahabir Prasad and others v. Shri B.R.

Vad and others, (1975) 2 SCC 736, a case arising under the

Bombay Sales Tax Act,  1953. Since this  judgment has been

relied upon as the sheet  anchor  of  the revenue’s case,  it  is

important to deal with it in some detail.   

23. The  question  that  arose  in  the  aforesaid  case  was

whether a dissolved firm could be re-assessed to sales tax in

respect of its pre-dissolution turnover.  By a two to one (2:1),

decision,  this  Court  held  that  the Bombay Act  contained the

necessary  provisions  to  re-assess  such  a  dissolved  firm  in

respect of its pre-dissolution turnover.  The majority judgment 26

Page 27

referred to the definition of “dealer” in the Bombay Act of 1953

and referred to this Court’s judgment in State of Punjab v. M/s

Jullunder  Vegetables  Syndicate  (supra).   We find  that  the

majority judgment of this Court relied heavily on the fact that

dishonest  persons  may  dissolve  a  firm  in  order  to  escape

liability to assessment of taxes legitimately due from them but

which  have  escaped  assessment.   In  paragraph  19,  the

majority held:

“It  is plausible that a distinction ought to be made between  the  death  of  an  individual  and  the dissolution of a firm. Human beings, as assessees, are  not  generally  known to  court  death  to  evade taxes.  Death,  normally,  is  not  volitional  and  it  is understandable that on the death of an individual, his liability to be assessed to tax should come to an end unless the statute provides to the contrary. With firms  it  is  different,  because  a  firm  which  incurs during its existence a liability to pay sales-tax may, with  a  little  ingenuity,  evade  its  liability  by  the voluntary act of dissolution. The dissolution of a firm could therefore be viewed differently from the death of an individual  and the partners could be denied the advantage of their  own wrong. But we do not want to strike this new path because the Jullundur case (supra) and the two cases which follow it have likened the dissolution of a firm to the death of an individual. Let us therefore proceed to examine the other provisions of the 1953 Act.”

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It then went on to quote Section 15(1) of the Bombay Sales Tax

Act, 1953 and then arrived at this conclusion:

“22. Section 15(1) contains an important clause that action  thereunder  can  be  taken  by  the  Collector after giving a notice to the assessee under Section 14(3) of the Act within the prescribed period. Once such  a  notice  is  given,  the  Collector  gets  the jurisdiction to assess or re-assess the amount of tax due from the dealer and all the provisions of the Act "shall  apply  accordingly  as  if  the  notice  were  a notice  served  under"  Section  14(3).  Section 14(3) speaks of the power of the Collector to assess the amount of tax due from the dealer after giving notice to him, if the Collector is not satisfied that the returns  furnished  are  correct  and  complete.  The jurisdiction to assess or reassess which is conferred by     section  15(1)     is  thus  equated  with  the  original jurisdiction to assess the dealer  under     section 14  . By  this  method,  the  continuity  of  the  legal personality of the assessee is maintained in order to enable  the  assessment  of  turnover  which  has escaped assessment.  It  is  no answer  to  a  notice under section 15 that the partners having dissolved the  firm,  the  assessment  cannot  be  reopened.  It puts  a  premium on  one's  credulity  to  accept  that having created a  special  jurisdiction to  assess  or reassess  an  escaped  turnover,  the  Legislature permitted that salutary jurisdiction to be defeated by the  device  of  dissolution.  The  argument  of  the appellants  really  comes  to  this:  suppress  the turnover, evade the sales-tax, dissolve the firm and earn your freedom from taxation.”

The Court then went on to add:

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“24. Section 15A confers on the Collector analogous powers to asses or re-assess a dealer for taxes due prior to November 21, 1956 when the States were reorganised, if either no assessment was made for the  prior  period  or  if  any  turnover  had  escaped assessment. This provision, like the one contained in Section 15, is of general application and makes no exception in favour of dissolved firm. Therefore, if  a  firm  was  not  assessed  prior  to  the re-organisation of States or if any part of its turnover had  escaped  assessment,  it  is  competent  to  the Collector  to  assess  or  re-assess  the  firm notwithstanding its subsequent dissolution.  This is the necessary  implication of  Section 15A.  It  must follow  as  a  corollary  that  the  power  to  rectify  a mistake apparent from the record can be exercised by the Collector under Section 35 of the Act of 1953 even  after  the  dissolution  of  an  assessed  firm, though on conditions specified in the section. The section  contains  a  compelling  implication  that evident errors can be corrected no matter whether the firm is in existence or is dissolved. Dissolution is not a panacea for liability to pay sales-tax.”

It also added in paragraph 32:

“It  is  indisputable that  the first  appellant  firm was liable  to  be  charged to  sales  tax  on  its  business turnover. The charging provisions are contained in Chapter III of the Act of 1953 and Chapter II of the Act of 1959. In this appeal, we have to construe the machinery provisions of those Acts. In accordance with the view taken in the cases cited above, the machinery sections ought to be construed so as to effectuate  the charging sections.  The construction which we have placed on the machinery provisions of the 1953 Act will give meaning and content to the charging sections, in the sense that our construction will  effectuate  the  provision  contained  in  the

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charging  sections.  The  resourcefulness  and ingenuity  which  go  into  well-timed  dissolution  of firms  ought  not  to  be  allowed  to  be  used  as convenient instruments of tax evasion. As observed by Lord Dunedin  in  Whitney v. Commissioners  of Inland Revenue:  

"A statute  is  designed to  be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission of clear direction makes that end unattainable."  

Far from there being any crucial omission or a clear direction in the present case which would make the end unattainable, the various provisions to which we have  drawn  attention  leave  it  in  no  doubt  that  a dissolved  firm  can  be  assessed  on  its pre-dissolution turnover.”

24. It is clear that on a conjoint reading of these paragraphs

this Court found that the machinery provisions contained in the

Bombay  Sales  Tax  Act,  1953,  were  sufficient  to  reassess  a

dissolved  firm  in  respect  of  income  that  had  escaped

assessment  before  its  dissolution.  A  distinction  was  drawn

between an individual who dies and a firm that is dissolved as a

device  to  evade  tax.   The  Court  laid  great  stress  on  the

provision contained in Section 15(1) of the said Act by which

the jurisdiction to assess or reassess under  Section 15(1) is

equated with the original jurisdiction to assess the dealer under

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Section 14.  By this method, the Court found the continuity of

the legal personality of the assessee is maintained in order to

enable  the  assessment  of  turnover  which  has  escaped

assessment.  The crucial difference, therefore, between Section

15(1) of the Bombay Sales Tax Act, 1953 and Section 11A of

the Central Excises and Salt Act is that Section 11A does not

contain  any  such  provision  as  is  contained  in  Section  15(1)

which equates the jurisdiction to assess or reassess with the

original jurisdiction to assess the dealer in the very first place.

Further, this Court  also construed Section 19 of  the Bombay

Sales  Tax  Act,  1959  which  would  throw  light  on  the  earlier

Bombay  Sales  Tax  Act,  1953,  as  containing  the  necessary

machinery provisions to assess dissolved firms in  respect  of

escaped turnover pre-dissolution.  Hence, this Court added:

“35.  It  is  relevant,  though we did not  refer  to this aspect while dealing with the provisions of the 1953 Act,  that  section 19(3) of  the 1959 Act  contains a clear indication that the legislature intended that a dissolved firm could be assessed under  the 1953 Act  also.  Section  19(3) speaks  of  the  liability  of partners for the tax due from a dissolved firm and provides  that  they  shall  be  jointly  and  severally liable to pay the tax due from the firm under the Act of 1959 or "under any earlier law", whether such tax has  been  assessed  before  or  after  dissolution.

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Section 2(12) of the 1959 Act defines "earlier law" to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate  is  that  a  dissolved  firm  could  be  assessed under the 1953 Act. Such a postulate accords with the  principle  that  if  the  legislature  provided  for  a charge of  sales-tax,  it  could not  have intended to render  that  charge  ineffective  by  permitting  the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable  to  pay  tax,  has  been  dissolved.  Section 19(3) of  the  1959  Act  not  only  makes  clear  what was  necessarily  implied  in  the  1953  Act,  but  it throws additional light on the true construction of the earlier  law.  But  we  thought  it  advisable  to  keep section 19(3) of the 1959 Act apart while construing the  1953  Act  because  it  is  the  courts,  not  the legislature,  who  have  to  construe the  laws  of  the land  authoritatively.  As  said  in  Craies  on  Statute Law:

Except  as  a  parliamentary  exposition, subsequent Acts are not to be relied on as  an  aid  to  the  construction  of  prior unambiguous Acts. (6th Ed., p. 146).  

The limited use which may be made of the language of  section  19(3) of  the  1959  Act,  though  such  a course is unnecessary, is for saying that it serves to throw some light  on the Act  of  1953,  in case the argument is that the Act of 1953 is ambiguous.

36. Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it.  We may only point out that the Act of 1959 contains provisions similar to those in sections 15, 15A and 35 of the Act of 1953 on  which  we  have  dwelt  at  some  length.  Those

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provisions can be found in sections 35, 35A and 62 of the Act.”

25. A reading of the ratio of the majority decision contained in

Murarilal’s case (supra) would lead to the conclusion that the

necessary machinery provisions were already contained in the

Bombay Sales Tax Act, 1953 which were good enough to bring

into  the  tax  net  persons  who wished to  evade taxes  by the

expedient of dissolving a partnership firm.  The fact situation in

the present case is entirely different.  In the present case an

individual proprietor has died through natural causes and it is

nobody’s case that he has maneuvered his own death in order

to evade excise duty.  Interestingly, in the written submissions

filed by revenue, revenue has argued as follows:-

“It is pertinent to mention that in the present case, Shri  George  Varghese (predecessor  in  interest  of the  appellants  herein)  was  doing  business  in  the name  of  manufacturing  unit  namely  M/s.  Kerala Tyre & Rubber Company and after the death of Shri George  Varghese,  his  legal  representatives (appellants herein) might have been in possession of  the plant,  machinery, stock etc.  and continuing the  same  business,  but  might  be  in  some  other name in order to avoid the excise duty chargeable to the previous manufacturing unit.”

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26. It  is  clear on a reading of  the aforesaid paragraph that

what revenue is asking us to do is to stretch the machinery

provisions of  the  Central  Excises and Salt  Act,  1944 on the

basis of surmises and conjectures.  This we are afraid is not

possible.   Before  leaving  the  judgment  in  Murarilal’s  case

(supra),  we wish to add that  so far  as  partnership firms are

concerned, the Income Tax Act contains a specific provision in

Section 189(1) which introduces a fiction qua dissolved firms.  It

states that where a firm is dissolved, the Assessing Officer shall

make an assessment of the total income of the firm as if  no

such dissolution had taken place and all the provisions of the

Income Tax Act would apply to assessment of such dissolved

firm.  Interestingly enough, this provision is referred to only in

the minority judgment in M/s. Murarilal’s case (supra).

27. The argument that Section 11A of the Central Excises and

Salt Act is a machinery provision which must be construed to

make it workable can be met by stating that there is no charge

to  excise duty  under  the main  charging provision of  a  dead

person,  which has been referred to while  discussing Section

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11A  read  with  the  definition  of  “assessee”  earlier  in  this

judgment.  

28. Learned  counsel  for  the  revenue  also  relied  upon  the

definition of a “person” under the General Clauses Act, 1897.

Section 3(42) of the said Act defines “person as under:-

“(42)  “Person”  shall  include  any  company  or association  or  body  of  individuals  whether incorporated or not.”

It will be noticed that this definition does not take us any further

as it does not include legal representatives of persons who are

since deceased.  Equally, Section 6 of the Central Excises Act,

which prescribes a procedure for registration of certain persons

who are engaged in the process of production or manufacture

of any specified goods mentioned in the schedule to the said

Act does not throw any light on the question at hand as it says

nothing about how a dead person’s assessment is to continue

after his death in respect of excise duty that may have escaped

assessment.  Also, the judgments cited on behalf of revenue,

namely,  Yeshwantrao v.  The Commissioner of Wealth Tax,

Bangalore,  AIR  1967  SC  135  at  pages  140,  141  para  18:

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(1966)  Suppl.  SCR  419  at  429  A-B,  C.A.  Abraham v.  The

Income-Tax Officer, Kottayam & Another, AIR 1961 SC 609

at 612 para 6: (1961) 2 SCR 765 at page 771,  The State of

Tamil Nadu v. M.K. Kandaswami & Others, Air 1975 SC 1871

(para  26):  (1975)  4  SCC  745  (para  26),  Commissioner  of

Sales Tax, Delhi & Others v. Shri Krishna Engineering Co. &

Others, (2005) 2 SCC 695, page 702, 703 paras 19 to 23, all

enunciate principles dealing with tax evasion in the context of

construing  provisions  which  are  designed  to  prevent  tax

evasion.  The question at hand is very different – it only deals

with  whether  the  Central  Excises  and  Salt  Act  contains  the

necessary  provisions  to  continue  assessment  proceedings

against a dead man in respect of excise duty payable by him

after his death, which is  a question which has no relation to the

construction of provisions designed to prevent tax evasion.

29. Learned counsel for the revenue also cited Girja Nandini

Devi & Ors. v.  Bijendra Narain Choudhury, [1967] 1 S.C.R.

93 at paragraph 15, and  Shri Rameshwar Manjhi (deceased)

Through his son Shri Lakhiram Manjhi v.  Management of

Sangramgarh Colliery & Ors., (1994) 1 SCC 292 at paragraph

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12, in support of the general principle that an action begun in a

court of law by a person does not cease with his death.  The

context of both decisions was very different.  The first decision

was in the context of proceedings in relation to partition of a

joint  family  whereas  the  second  was  under  the  Industrial

Disputes Act.   Neither judgment has any direct bearing on the

controversy before us.  

30. It  remains  to  consider  a  judgment  cited  by  learned

counsel for the appellants, namely, Commissioner of Central

Excise, Bangalore –III v. Dhiren Gandhi, 2012 (281) E.L.T. 64

(Karnataka).   This  judgment  is  correct  in  its  conclusion  that

while interpreting the provisions of the Central Excises and  Salt

Act,  legal  heirs  who are  not  the persons chargeable  to  duty

under the Act cannot be brought within the ambit of the Act by

stretching its provisions.  To the extent that this judgment holds

what is set out hereinbelow, it is correct:-

“We do not find any provision in the Act which foists any such liability in the case of intestate succession. In  other  words,  there  is  no  provision  which empowers  the  authorities  to  recover  due  from  a deceased assessee by proceeding against his legal heirs.  The way section 11 and 11A are worded, it is amply  clear,  the  legislature  has  consciously  kept

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away  the  legal  heirs  from  answering  to  liabilities under the Act.” (at page 69)

31. The impugned judgment in the present case has referred

to  Ellis  C.  Reid’s case but  has  not  extracted the real  ratio

contained therein. It then goes on to say that this is a case of

short  levy which has been noticed during the lifetime of  the

deceased and then goes on to state that equally therefore legal

representatives of a manufacturer who had paid excess duty

would not  by the self-same reasoning be able to claim such

excess amount paid by the deceased. Neither of these reasons

are reasons which refer to any provision of law.  Apart from this,

the  High  Court  went  into  morality  and  said  that  the  moral

principle of unlawful enrichment would also apply and since the

law  will  not  permit  this,  the  Act  needs  to  be  interpreted

accordingly.  We wholly disapprove of the approach of the High

Court.   It  flies in the face of  first  principle when it  comes to

taxing statutes.  It is therefore necessary to reiterate the law as

it stands.  In  Partington  v. A.G., (1869) LR 4 HL 100 at 122,

Lord Cairns stated:  

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“If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the  law,  the  subject  is  free,  however  apparently within  the  spirit  of  law  the  case  might  otherwise appear to be. In other words, if there be admissible in  any statute,  what  is  called  an  equitable, construction,  certainly,  such  a  construction  is  not admissible in a taxing statute where you can simply adhere to the words of the statute".

32. In Cape Brandy Syndicate v. IRC, (1921) 1 KB 64 at 71,

Rowlatt J. laid down:

“In a taxing Act one has to look merely at what is clearly said.  There is no room for any intendment. There  is  no  equity  about  a  tax.   There  is  no presumption as to tax.   Nothing is  to  be read in, nothing is to be implied.  One can only look fairly at the language used.”

33. This Court has, in a plethora of judgments, referred to the

aforesaid  principles.   Suffice  it  to  quote  from  one  of  such

judgments  of  this  Court  in  Commissioner  of Sales  Tax

Commissioner, Uttar Pradesh v. Modi Sugar Mills, 1961 (2)

SCR 189 at 198:-

“In  interpreting  a  taxing  statute,  equitable considerations are entirely  out  of  place.   Nor  can taxing statutes be interpreted on any presumptions

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or assumptions.   The court  must look squarely at the words of the statute and interpret them.  It must interpret  a  taxing  statute  in  the  light  of  what  is clearly expressed; it cannot imply anything which is not  expressed;  it  cannot  import  provisions  in  the statute so as to supply any assumed deficiency.”

34. We are, therefore, of the view that this appeal must be

allowed  and  the  judgment  of  the  High  Court  of  Kerala  is,

accordingly  set  aside  and  that  of  the  learned  Single  Judge

restored.

……………………J. (A.K. Sikri)

……………………J. (R.F. Nariman)

New Delhi; July 29, 2015.

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