TMI Blog1939 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... property under Mohamedan Law and without committing any act or omission of his own volition, be a member of an association of individuals under Section 3 of the Burma Income tax Act? and thirdly, Is the omission of the nine co-heirs in the present case to realise the shares of the property left to them by their father and mother under Mohamedan Law and which they are free to realise at any time, and the appointment of one of their number as their agent, sufficient to constitute them an association of individuals within the meaning of Section 3 of the Burma Income Tax Act? The facts which give rise to these questions are that one A.M. Baporia died in the year 1904 leaving a widow and nine children. His widow died in 1934. The deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, that there is a combination of persons formed for the promotion of a joint enterprise banded together if I may so put it, as co-adventurers-to use an archaic expression-then I think no difficulty whatever arises in the way of saying that in this particular case these four persons did constitute an 'association of individuals' within the meaning of both Section 3 and Section 55 of the Indian Income Tax Act, 1922. With that passage I respectfully agree. It would be unfortunate indeed, if a decision, which must necessarily depend in each particular case upon a different set of circumstances, were taken as being an attempt to define, or to lay down a hard and fast rule, as to what may amount to an association of individuals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are informed that they had, for the purpose of managing these properties, confided their interest, each of them, to one and the same individual, Mr. M.A. Baporia, and in the case which Dr. Rauf cited to us in support of his contention that there was no real measure of agreement among the co-sharers of the property, the Bench carefully reserved from their consideration the existence of any such circumstances. In the Commissioner of Income-tax v. Muhammad Aslam, the judgment remarks: We express no opinion as to what the position would be if the co-owners of an income-producing property appointed one or more persons, whether from among themselves or from outside, to perform all the functions of a common scheme of management. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Panckridge, J., said: With regard to the contention that the owners are an association of individuals within the meaning of section 3, it is enough to say that this point is not raised in the letter of reference. His subsequent observations are, therefore, in the nature of obiter dicta. He continued: In my opinion, however, the words 'other association of individuals' must be construed according to the ejusdem generis rule with reference to the word 'firm' preceding it and they do not cover the members of a formerly undivided Mitakshara family after a preliminary decree for partition has been made. This expression of opinion would have no doubt, been stated in more meticulous language if the learned Judge h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is some forbearance or act upon his part to show that his intention and will accompanied the new status which he has been asked to receive. With regard to the last question, I think the answer should be in the affirmative. The matter, as I have said before, in all these cases resolves itself in the last resort to a pure question of fact, provided there is any material upon which the Commissioner of Income tax can come to a conclusion. It is not for us to say how many facts, or of what nature, in each particular case he should desire to see before arriving at the conclusion that there is an association of individuals within the meaning of this section: it is enough for our purpose if we say here that such facts were present. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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