TMI Blog1957 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... a charge on the property. The Tribunal held that this was a mere case of the assessee being compelled to apply a portion of his income for the maintenance of a person whom he was under a personal and legal obligation to maintain and since there was no charge created on the property these amounts could not be deducted from the income of the assessee. The question of law that arises from the order of the Tribunal, and which has been referred to us is: Whether the assessee is entitled to a deduction of ₹ 1,350 and ₹ 18,000 from his total income of the previous year relevant to the assessment year 1953-54/1954-55? Now, Mr. Kolah says that the Tribunal erred in giving undue importance to the question as to whether or not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 8 pies of the share of each partner, the income had been diverted from him to the mother and never formed part of his income at all. In this connection, however, an argument was advanced by Mr. Kolah for the assessee in support of the claim for exemption that the payment to the mother was a charge on the income of the managing agency. We were inclined to accept the submission, as we have specifically stated in the judgment, but we considered it unnecessary to do so, and what we stated is at page 741: We are inclined to accept the submission of Mr. Kolah that it does constitute a charge, but in our opinion it is unnecessary to decide this question because this question can only have relevance and significance if we were considering a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the case of Dudhuria [1933] 1 I.T.R. 135, which I have just referred to, and having taken into account all those decisions we had in this judgment deliberately made the two observations that we have set out above, which do appear to be an extension of the right of exemption as it was understood in prior decisions. It may be that in so stating the law the ratio had been put in a somewhat wide form; but there can be little doubt that we have, in terms, laid down that it is not essential that there should be a charge, it is quite sufficient if there is a legally enforceable claim. If that test is to be applied to the facts of the present case, the decree undoubtedly constitutes a legally enforceable claim. Mr. Amin has attempted to argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te simple, because what was being subjected to tax was not the income of the executors, but was the income of the deceased testator, and in a separate judgment Viswanatha Sastri, J., points out at page 811: The executors merely stand in the shoes of the testator and, having received the income of the estate and applied it according to the directions in the will, they cannot deduct such expenses in computing their income, for such expenses represent merely the application or distribution of income after it has been realised. In our opinion, this case has no relevance to the issue that we have been called upon to determine. Mr. Amin also relies on a case reported in Commissioner of Income- tax v. Makanji Lalji [1937] 5 I.T.R. 539 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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