TMI Blog1986 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed themselves as settlors and appointed themselves as trustees. It was specifically mentioned that the assessee was owner of the property. The main covenants were as follows : "(i) The trustees would allow the assessee, Kishore Kumar, to occupy the entire house or such portion thereof as he may choose ; (ii) The unoccupied portion, if any, may be let out and in that event rent would be receivable by the assessee, Kishore Kumar ; (iii) After the death of the assessee, Kishore Kumar, the trustees shall stand possessed of the house for the assessee's son Amit Kumar absolutely ; (iv) If Amit Kumar dies before the assessee, the trustees shall stand possessed of said house absolutely for the assessee ; (v) The remaining work of comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income of the assessee under sections 64 and 62, read with section 27 of the Income-tax Act, 1961 ('the Act'). The Tribunal held that what could be includible under section 64 or under section 62 was income actually derived from property transferred to a minor and not notional income represented by self-occupation of the property. The Tribunal, therefore, held that notional income from said property was not includible in the total income of the assessee. 5. The learned departmental representative has submitted that the Tribunal had not considered all the terms of the trust deed in its earlier order and that in the earlier order the only aspect which was considered was whether provisions of sections 64 and 62 were attracted. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has a mere chance of succession and nothing more. He would acquire interest in future only if he survived the assessee. If he happened to die before the assessee, the assessee on his (son's) death would become entitled to the property absolutely. The cost of further construction was to be borne by the assessee himself and he alone, as trustee, had absolute power to sell the property and invest money in securities and then change investments from time to time. It was omitted before us that municipal taxes were being paid by the assessee. In the circumstances, there is no escape from the conclusion that the assessee had all the attributes of ownership during his lifetime and only purpose of executing the trust deed was to ensure that after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers the ITO to assess the beneficiary in respect of the income of trust property where the trustees have not been assessed in respect thereof. If the property had been given on rent, the assessee would have been liable to be assessed in respect of rent income. When the property is not given on rent he would be liable to be assessed in respect of income assessable under the head 'Income from house property'. 8. We, therefore, confirm the inclusion of Rs. 3,675 in the total income of the assessee. We do not consider it necessary in this appeal to record any decision on the plea of the department that trust deed was a mere veil and that various terms of the trust deed indicated that ownership continued to vest in the assessee in spite of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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