' SHAMEEM HUSSAIN KADR1, J.-This judgment will dispose of Tax References Nos. 35, 43, 44 and 45 of 1972. Brief facts of the case are that one Mian Rauf Ahmad, who was a shareholder of the Premier Cloth Mills, Lyallpus, was recipient of a sun of Rs, 31,275 as dividend declared by the Company on 30th March 1961. The present applicant is one of the legal heirs of Mian Rauf Ahmad deceased. The return was filed by the late Mian Rauf Ahmad for the assessment year 1959-60. He died on 6th August; 1962. The revised return was filed by the applicant on 13th December, 1962. The Income-tax Officer issued notice under section 23(2) of the Income-tax Act to the applicant who appeared before him. After making necessary enquiry the Income-tax Officer by his order dated 15th June 1964 made the assessm ent to the tune of total income of Rs, 3,16,086.
' In Tax Reference No, 43 of 1972 Mian Rauf Ahmad was assessed for the year 1962-63 by the Iccome-tax Officer vide his order dated 30th June 1967. Total taxable amount in this case was Rs, 2,09,510, ' In Tax Reference No, 44 of 1972 the assessment year was 1960-61. The total income assessed for this year was Rs, 2,44,020, as is borne out by the order of the Income-tax Officer dated 30th June 1965.
' In Tax Reference No, 45 of 1972 the assessment order has not been placed on the record.
Therefore, neither the assessm ent year nor the taxable income is known. However, the applicant filed four appeals against the orders of assessment for the assessment years 1959-60, 1960-61, 1961-52 and 1962-63, as is borne out from the certified copy of the order of the Income-tax Appellate Tribunal. After arguments before the Tribunal, it is alleged, the applicant filed before it his affidavit wherein he submitted that the deceased Mian Rauf Ahmad left the following legal heirs:- (i)Sheikh tvlian Muhammad (father of the deceased);
(ii) Sheikh Aftab Ijaz (son);
(iii) Begum Safia Sheikh Qadir Bakhsh;
(iv) Begum Suraiya Mian Inam Ilahi; and (v)Begum Mussarrat Mian Mahmood Ahmad.
' Additional ground was raised before the Tribunal that the orders of assessment made in the name of the applicant, without joining the other legal heirs of the deceased, were illegal. The Departmental Representative submitted before the Tribunal that the revised returns for certain years were voluntarily filed by the applicant alone on whom other notices in the course of assessm ent proceedings were served. He never raised any objection to the proceedings before the Income-tax Officer ab nit the absence of other legal heirs of the deceased. The other objection to the assessm ents was in regard to the inclusion of the amount of dividend received by the deceased Mian Rauf Ahmad, from Premier Cloth Mills Limited: The Tribunal rejected both the pleas of the applicant vide its order dated 9th September, 1971. The applicant has approached this Court under section 66 of the Income-tax Act by these four references in which the following 9 questions have been raised:- (1)Whether on the facts and in the circumstances of the case the assessee could not claim before the Tribunal by filing additional grounds of appeal that the assessment was invalid as all the legal representatives of the deceased had not been impleaded by the Income-tax Officer though there was material on the record to show that besides the applicant, there were other legal representatives of the deceased?
(2)Whether the liability imposed by law on legal representatives of the deceased was attached to all the legal representatives of the deceased on whom the notice was served?
(3) Whether the representation of the estate of the deceased was complete without impleading other legal representatives of the deceased?
(4) Whether it was a case of invoking the jurisdiction or submission to the jurisdiction. In any case whether jurisdiction could be conferred if the objection was not raised before the Income-tax Officer?
(5) Whether in the facts and circumstances of the case there was material on the record to show that there were other legal representatives of the deceased?
(6) Whether the dividends due out of compromised income under Martial Law Regulation 43/48 by the Central Committee could be included in the assessable income of the deceased contrary to the provisions of Martial Law Regulation 43/48?
(7) Whether the dividends declared in the name of the deceased on 30-3-1961 by Premier Cloth Mills Limited could be assessed during the year 1962-63, the income having arisen in the year ending 30-3-1961?
(8) Whether dividends received by the deceased as his share from the dividends declared in the name of Mian Mohammad Allah Bakhsh Karachi out of the excess income of Rs, 25,50,000 assessed under Martial Law Regulation 43/48 were not exempt from assessment?
(9) Whether the facts proved or admitted provide evidence to hold that all dividends declared by Premier Cloth Mills Limited must be held to be out of the normal income and not excess income when the material on record did not show that the Company had enough profits during year ending 31-3-1960 and 31-3-1961 to distribute the dividends of Rs, 13,30,000 and Rs, 14,29,150?
' We are afraid, out of the 9 questions raised only two are relevant. One of them we are forming in place of questions 1 and 2 in the following words "Whether on the facts and circumstances of the case the petitioner who appeared before the Income-tax Officer and filed appeal before Tribunal can evade his liability of payment of tax on the assessment made in regard to the income of his deceased father to the extent of the property in his hands on the ground that the other legal heirs have not been impleaded or heard by the Income-tax Officer?"
2. The other question is question No, 8 mentioned above. We have already dealt with this question in Tax References 42 to 46 of 1967 and Tax Reference No, 2 of 1968 and held that the dividend in the han of the shareholders, declared by the Premier Cloth Mills Limited was taxable income and the assessee is liable to pay tax thereon. Martial Law Regulations 43 and 48 do not exempt this income from assessm ent. The answer to question No, 8 is, therefore, in the negative.
3. Dealing with the main question framed by us as to the absence of the other legal representatives before the Income-tax Officer, Mr. Mohammad Ismail Bhatti learned counsel for the applicant cited E. Alfred v. First Additional Income-tax Officer, Salem (1) and Muniyammal v. Third Additional Income-tax Officer, Salem (2). In these two cases section 24-B and section 34 of the Income-tax Aot have been dealt with. It was held
(1) (1957) 32 I T R 401 (2) (1960) 38 I T R 664 ' in the former case (i) that (a) if the Income-tax Officer bona fide believed and acted on that belief that A was the only legal representative, (b) if A did not bring to the notice of the Income-tax Officer that there were other legal representatives who should be brought on the record and the assessm ent completed in their presence as well, (c) if A represented the estate of E in the assessm ent proceedings and (d) if there were no fraud or collusion, then, it could well be said that the entire body of legal representatives including A would be bound by the assessment made by the Income-tax Officer; but the first three factors (a), (b) and (c) were absent in this case.". The case before us is, therefore, obviously distinguishable from the facts of the present case, for, no such plea was ever raised by the applicant before the Income-tax Officer. The applicant himself filed the revised returns. The facts of the other case are also not attracted to the present case. Mr. Muhammad Ismail Bhatti cited another judgment from Pakistan jurisdiction (1962 PTD 93). This was a case of Estate Duty. The law being different, is net applicable to the present case. We are afraid, the applicant has to blame himself and has to fail in these references, for, he did not raise the objection before the Income-tax Officer and the assessment cannot be challenged by him, because the grievance, if any, could be raised by the other legal heirs of the deceased. It does not lie in the mouth of the applicant to raise such an objection so far as be is concerned.
4. For the foregoing reasons the answer to the question framed by us is also in the negative. The respondents will be entitled to costs.