9911796707
TMI Blog1989 (11) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ust, the trustees of which were the assessee and Himanshu Bharat Divecha. The beneficiary was Shri Yash Bharat Divecha. The said commission of RS. 38,000 was assessed in the hands of the assessee. 3. When the matter came before the Dy. CIT (A), he confirmed the finding the ITO adding the income Of Rs. 38,000 on account of commission earned by Yash Trust from M/s. Industrial Tube Manufacturing Company. 4. The learned authorised representative for the assessee submitted that it was after 1985 that the amendment came to the effect that the trust would not be doing any business. In the light of K.T. Doctor vs. CIT (1980) 15 CTR (Guj) 43 : (1980) 124 ITR 501 (Guj) and CIT vs. K.K. Birla (1982) 26 CTR (Cal) 51 : (1982) 137 ITR 126 (Cal) besid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. There is no controversy about the fact that the trust is legally constituted. There is nothing irregular and fraudulent about its coming into being. The business was conducted by the trust and though the assessee was friendly related with the said M/s. Industrial Tube Manufacturing Company but the business was secured by her on behalf of the trust and it was the beneficiary, her minor son Yash Bharat Divecha, who earned the said income and he was paid the said amount ultimately when the trust had become defunct. There is also no dispute about the fact that for the asst. yr. 1981-82, similar commission income earned by the trust has been assessed in the hands of Yash Trust, as per copy of the assessment order placed at pages 33-34 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trust and to act in accordance with the deed of trust subject to the provisions of the Indian Trusts Act, 1882 and if they fail duty they are accountable in their capacity as trustees." The above stated finding in the Gujarat High Court decision directly supports the contention of the assessee. 7. Regarding the factum that the assessee is the mother of the beneficiary, Shri Yash Bharat Divecha, the Calcutta High Court decision in the case of K.K. Birla supports the contention of the assessee. In the said case, their Lordships have held as under: "that in this case the minor was carrying on business through the guardian her father. The assessee was not acting a himself but as the guardian, for and on behalf of the minor. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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