TMI Blog1970 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... The judgment of the court was delivered by HEGDE J.--- These appeals were brought on the strength of certificates granted by the High Court of Calcutta against its judgment in references under section 66(1) of the Indian Income-tax Act, 1922 (hereinafer called the Act). The questions referred to the High Court are : " (1) Whether, on the facts and in the circumstances of the case and on a proper construction of the three deeds executed on the 3rd November, 1944 the 25th September, 1947, and the 17th March, 1951, referred to in the order, the Tribunal was right in holding that there was only one beneficiary viz., Sri Iswar Gopal Jew, under the trust? (2) If the answer to the question (1) be in the negative, then whether the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me a trustee on attaining majority in March, 1947, and Nirmal Kumar, the eldest son of Kokila Devi also became a trustee in the year 1960. Under the said deed, Kokila Devi was appointed as the sole shebait of the idol until the sons of Badri Prasad became majors. But as soon as they became majors they were to be joint shebaits of the idol along with Kokila Devi. Two-thirds of the rent realised from the trust properties was to be utilised towards seva of the deity and the balance 1/3rd was to be retained in the hands of the trustees to meet the collection charges, taxes and other incidental expenses relating to the said properties. On September 25, 1947, Badri Prasad executed another deed to which he, Kokila Devi and Fulchand were parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds was the deity, Sri Sri Ishwar Gopal Jew. Hence the first proviso to section 41(1) is not applicable to the facts of the case and the trustees should be assessed in the status of an individual in respect of the income received by them on behalf of the deity. The relevant portions of section 41(1) and the 1st proviso thereto read : " In the case of income, profits or gains chargeable under this Act... any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise ... are entitled to receive on behalf of any person the tax shall be levied upon and recoverable from such ... trustee or trustees in the like manner and to the same amount as it would be leviable upon and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a reading of a entire deed, it is clear that reference to them as beneficiaries is a misnomer and that they are not entitled to any benefit under any of those deeds. Therefore, the finding of the Tribunal that the sole beneficiary under those deeds is the deity is not open to challenge. If that is to so, the case clearly falls within the main section 41(1) and the first proviso to that section is inapplicable to the facts of the case. On the facts found by the Tribunal, it cannot be said that the income or profits in question are " not specifically receivable by the trustees on behalf of any one person ." The fact that, for certain purposes, a trusteeship is considered as " property " and that the trustees have an interest in the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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