TMI Blog1969 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... and suitable maintenance including arrears of maintenance for herself and her children. A special referee was appointed by this court and the special referee made a report which was confirmed by this court in the said suit on the 1st February, 1955. By the order confirming the report of the special referee it was provided that a sum of Rs. 750 per month be allowed to the plaintiffs for their maintenance during the term of the natural life of the plaintiff, Smt. Santimoyee Bose, and until all the other plaintiffs attained majority. It further provided that a sum of Rs. 650 per month be allowed to the plaintiffs, Smt. Santimoyee Bose, Asoke Bose, Ajoy Bose, Amit Bose and Arabinda Bose, for their maintenance after the plaintiffs, Smt. Rekha Bose and Smt. Ella Bose were married and a further sum of Rs. 500 per month be allowed to the plaintiff, Smt. Santimoyee Bose, as her maintenance after the two daughters have been married and all the sons had attained majority. It was further provided that under the said order a slim of Rs. 15,000 be allowed to each of the daughters, Smt. Rekha Bose and Smt. Ella Bose, for their marriage expenses. The premises No. 15, Nayan Chand Dutt Street, Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon order and held that the Income-tax Officer was justified in making the assessment on the assessee in the status of an association of persons. Both the assessees and the Income-tax Officer preferred appeals before the Income-tax Appellate Tribunal against the orders of the Appellate Assistant Commissioner. The Tribunal by a consolidated order disposed of the said appeals. In the appeals preferred by the assessees it was contended that the assessees should have been taxed on the basis of the quantum of maintenance falling to the share of each maintenance holder and not on the basis of all the maintenance holders taken together as constituting an association of persons. The departmental appeal questioned the exclusion of the amount of Rs. 30,220 representing the arrears of maintenance provided for by the High Court decree for the assessment year 1955-56. The Tribunal held that the amount paid as maintenance jointly to two or more persons could not be said to have been received by them in specified portions by each one of them. According to the Tribunal maintenance was not awarded on the basis of the shares falling on the inheritance but on the basis of the needs. The Tribunal he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Administrators-General, the official trustees, or by any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of court, or any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise, the tax shall be levied upon and recoverable from such Court of Wards, Administrator-General, official trustee, receiver or manager or trustee or trustees in the like manner and to the same amounts as it would be leviable upon and recoverable from any person on whose behalf such income, profits or gains are receivable and all the provisions of this Act shall apply accordingly. " In this case, it appears to us that the Tribunal accepted the position that the income-tax authority was correct in taxing the income jointly under the provisions of section 41 of the Indian Income-tax Act, 1922. The proviso to section 41 of the Indian Income-tax Act, 1922, so far as is material for the present purpose provided, inter alia, as follows : " Provided that where any such income, profits or gains or any part thereof are not specifically receivab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of the decree, it can be urged that the shares of the different plaintiffs in the said decree were determinate and known. If that is the position, then under the proviso to section 41 of the Income-tax Act, 1922, even though the assessees did not associate or join in any endeavour or any purpose to produce the income, they would be deemed to be an association of persons, if provisions of section 41(1) are otherwise attracted in respect of this assessee. Applicability of provisions of section 41(1) depends upon the question whether the plaintiff, Smt. Santimoyee Bose, in this case fulfils one of the categories mentioned in section 41(1) of the Income-tax Act, 1922. This aspect of the matter, it appears, was never raised or disputed by the parties before the income-tax authorities or before the Income-tax Tribunal. Whether Smt. Santimoyee Bose, in fact, manages property on behalf of other plaintiffs or she was in fact, appointed by or under an order of any court will involve examination of both factual aspect, and legal consequences of the matter. The parties proceeded on the basis that she was receiving the said income on behalf of others. The contention had all along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that sub-section (1) of section 41 applies. If it was the assessee's grievance that that assumption of fact was incorrect and improper, it was open for the assessee to raise a question of law that there was no evidence to support that finding. No question to that effect has been raised. In that view of the matter we have to proceed on the basis that section 41(1) of the Income-tax Act applies. The questions suggested by the assessees in their application under section 66(1) to the Tribunal also confirm that point of view. In the view we have taken that the said decree was a joint decree and the maintenance was not on the basis of the shares for each of the plaintiffs we are of the opinion that the income was received on behalf of the persons whose shares were indeterminate. As such, the proviso to sub-section (1) of section 41 of the Income-tax Act, 1922, applies. In that view of the matter the assessees may be deemed to be an association of persons even though they are not an association of persons in fact. Some argument was advanced by Mr. B. L. Pal, learned advocate for the revenue, to the effect that in fact also the assessees associated inasmuch as by joining in the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
