TMI Blog2011 (3) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept the contention of assessee that the remuneration payable to Shebaits should be treated to be "annual charge" within the meaning of section 24(1)(iv) - No merit in this appeal and the point formulated by the Division Bench is answered in the negative in favour of the Revenue - The appeal is, thus, dismissed. - 139 OF 2004 - - - Dated:- 31-3-2011 - BHASKAR BHATTACHARYA, SAMBUDDHA CHAKRABARTI, JJ. J.P. Khaitan for the Appellant. R. Chowdhury for the Respondent JUDGMENT Bhaskar Bhattacharya, J. This appeal under section 260A of the Income-tax Act, 1961 is at the instance of an assessee and is directed against an order dated 12-11-2003 passed by the Income-tax Appellate Tribunal, "SMC" Bench, Kolkata, in ITA N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44,000 being the expenditure on remuneration paid to the Shebaits which was increased in view of the aforesaid order passed by this Court in Title Suit No. 1586 of 1946. (d) Being dissatisfied, the appellant preferred an appeal before the CIT (Appeals) and by order dated 21-10-2002, the CIT(Appeals) dismissed the appeal with respect to the aforesaid disallowance of the claim of Rs. 1,44,000 and upheld the order of the Assessing Officer. (e) Being dissatisfied, the appellant preferred an appeal before the Tribunal below and as indicated above, the Tribunal by the order impugned in this appeal affirmed the order of the CIT (Appeals). 4. At the time of admission of the present appeal, a Division Bench of this Court framed the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper. 6. Mr. Chowdhury, the learned Advocate appearing on behalf of the revenue has, on the other hand, supported the order passed by the Tribunal below and has contended that in view of the Division Bench decision of this Court in the case of CIT v. Sri Sri Saradeswar Siva Linga [1983] 140 ITR 9531, there is no scope of any argument that the amount spent as remuneration of the Shebaits should come within the expression "annual charge" within the meaning of section 24(1)(iv) of the Act. 7. In order to appreciate the question involved herein, the provision contained in section 24(1)(iv) of the Act is quoted below : "24(1) Income chargeable under the head "Income from house property" shall, subject to the provisions of sub-section (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing test to decide whether a particular expenditure should get the benefit of deduction : "In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt there, are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obligated to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing observations of the Supreme Court in the case of Kalipada Chakraborti v. Smt. Palani Bala Devi AIR 1953 SC 125 : "Whatever might be said about the office of a trustee, when carries no beneficial interest with it, a shebaitship, as is now well settled, combines in it both the elements of office and property. As the shebaiti interest is heritable and follows the line of inheritance from the founder, obviously when the heir is a female she must be deemed to have, what is known as widow's estate in the shebaiti interest. Ordinarily there are two limitations upon a widow's estate. In the first place, her rights of alienation are restricted and in the second place, after her death the property goes not to her heirs but to the heirs of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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