The Commisslbner of Income-Tax, Punjab v. Shri Thakur Das Bhargava, Advocate, Hissar.

76 SCPREME COURT REPORTS [ 1961]

S. K. DAS J.-fhis 1s an appeal on a certificate of fitness granted under the provisions of aub-s. 2 of Cnmmts-~ioner nf 66A of the Indian Income-tax Act, 1922, by the High

R.

/11c1,:>1e-tax C'ourt of Judicature for the State of Punjab then sit-

v.

Thakur Das ting at Simla. The certificate is dated December 28, Bhargaia 1953, and wa.s granted on an application '.Dade by thf

Commissioner of Income-I.ax, Punjab, appellant herein. S. K. Das]. The relevant facts a.re shortly stated below.

For the assesment yea.r I 946-4 7, one Pandit Thakur. da.s Bha.rga.va, a.n advoca.to of HiBBa.·r a.nd respondent btiforc us, was assessed to income tax on a total assess-able income of Rs. 58,475/. in the account year 1945-46. This sum included the amount of Rs. 32,500/- sta.ted to have been received by the respondent in July, 1945 for defending the accused persons in a case known as the Farrukhnagar case. The assessee claim-ed that the said a.mount of Rs. 32,500/· was not a part of his professional income, because the amount was given to him in trust for charity. This claim of the assessee was not accepted by the Income-tax Officer, nor by the Appellate Assistant Commissioner who heard the appeal from the order of the Income-tax Officer. Both these officers held that the assessee had received the amount of Rs. 32,500/. as his profession a.I income and the trust which the a.ssessee la.ter created by a .deed of Trust dated August 6, 1945, did not change the nature or character of the receipt as professional income of the aBBessee; they further held that the per-sons who paid the money t-0 the assessce did not create any trust nor impose any obligation in the nature of a trust binding on the assessec, and in fact and law the trust was created by the assessce himself out of his professional income; therefore, the amount attracted tax as soon as it was received by the aBBessee as his professional income, and its future destination or application was irrelevant for taxing purposes. From the order of the Appellate·Assista.nt Commissioner a further appeal was carried to the Income-tax Appel. late Tribunal, Delhi Branch. We shall presently state the facts which the Tribunal found, but its conclusion drawn from the facts found was expreBBed in the fo II owing words : " The income in this case did not at any stage arise to. the assessee. Keeping in mind the I86o express stipulation made by the-_assesses when he accepte d t h e b rie f · t h ere was a vo l untary trust created, Com1nissioner of Income-tax \\·hich h11od to be and was subsequently reduced into v. writing after the money was subscribed. The' pay-Thakur Das . men ts receiyed from the accused and other persons Bka.gava were received on behalf of the trust aI)d not ·by the assessee in his capacity ·as an· individual. In this S. K. Das j. view; we delete the sum of Rs. 32,500/- from the assessment." .

The appellant then moved the Tribunal for stating a case tQ the High Court on the question of law which arose out of the order of the Tribunal. The Tribunal was of the opinion that a question of law did arise out of its order, and this question it formulated in the following tern:is : ·

"Whether the suin of Rs. 32,500/- received by the assessee in the circumstances set out.in the trust deed later executed by him on August 6, 1945, was his pro-fessional income taxable iri his hands, or was·it money received by him on behalf of a trust and not in his capaCity as an individual."

It appears that in stating a case the Tribunal fram-ed an additional question as to whether the trust was created at or before the payment of Rs. 32,500/-, but expressed the vie.w that this additional question was implicit in the principal question formulated by it.

A case was accordingly stated to the High Court under s. 66 of t.he Indian Income-tax Act, and the High Court by its judgment dated August 3, l953, answered· the question in favour of the assessee, hold-ing ·that " the sum of Rs. 32,500/- received by the assessee was not received by him as his professional . income but was received on behalf of the trust and not in his capacity as an individual". The appellant then moved the High Court and obtained the certificate of fitness referred to earlier in this judment. ,

We shall presently state the facts found by the Tri-bunal in connection with the receipt of the sum of Rs. 32,500/- by the assessee, from which the Tribunal drew its inference. But the question as framed by the Tribt:ina,l a.nd answered :by the· High Court, ·was whether in the circumstances set out in the trust deed dated August 6, 1945, the amount of Rs. 32,500/- Comn11ss1ourr of received by the assesRee was professional income in his

I t1Co111e-tax

v hand. 1 t is, therefore, appropriate to refer first to the Thakur Da~ recitals in the trust deed. The respondent stated in Hhargav~ the trust deed that he had " decreased " his legal

practice for the last few years and had reserved his S. 1(. Das j. professional iucome accruing after June 1944 for pay-

ment of taxes and charity. He then said: "accord-. ingly, I have been acting on that. In the Farrukh-nagar, district Gurga.on case, Grown v. Ohuttan Lal etc., the relatives and the accused expressed a strong desire to get the case conducted by me during its trial. At last 011 their pe1siste11ce and promise that they would pro-vide mo with Rs. 40,000/· for ~haritable purposes and I would create a public charitable trust thereof I agreed to conduct the case. The case is now over. The accused and their relatives have given' me Rs. 32,500/- for charity and creating a. trust. Tho said amount has been deposited in the Bank. If they pay any other amount that will also be included in that. Accor-dingly, I create this trust with the following conditions and with tho said amount and any other amount which may be realized afterwards or included in the trust;". (then followed the name and objects of the trust, etc.). The Trib9nal accepted as correct the statements of the respondent that he was at first. unwilling to accept the brief in the Farrukhnagar case; he was then per-suaded to accept it at the request of some members of tho Bar and some influential local people on the under-standing, as tho respondent put it, that the accused persons of that case would provide Rs. 40,000/- for a charitable trust which the respondent would create. Eventually, the sum of Rs. 32,500/; was pa.id by or on behalf of the accused persons, and as the Tribunal has put it, ,. charitable trust was created by the respond-ent by the trust deed dated August 6, 1945, the reci-tals whereof we have quoted above.

The question before us is what is the proper legal inference from the aforesaid facts found by the Tribu-nal. Both the Tribunal and the High Court have drawn the inference that & charitable trust was created by the persons who paid. the money to the assessee, r960 and all that the assessee did uuder the .feed of trust dated August 6, 1945, was to reduce the terms of the ConimissiOner of Income·tax trust to writing. The High Court, therefore, a pp lied v. the principle laid down J:>y the Privy Council in Raja Thakur Das Bejoy Singh Dudhuria v. Commissioner of Income-tax, Bhargaua Bengal(') and observed that by· tlie overriqing obliga-tion imposed on the assessee by the persons ·who paid S. K. Das]. the money, the sum of Rs. 32,500/- never became the income of the assessee; and the amount became trust -.._ ·property as soon as it was paid, .there being no ques-tion of the application of part of his.: income by the assessee.

On.behalf of the appellant it has been contended that the inference which the Tribunal and the High Court drew is not the:. proper legal inference which flows from the facts found, and according to the learn-ed Attorney-General who appe~red for the appeHant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later 6; created a trust by the deed . of. trust dated August 1945. He has submitted t~~t there_ was no trust nor any ~egal obligation imposed on tl!e assessee by the persons wlio paid the money, at the time when. the money was received, which pre- . vented. the amount from becoming the profes.sional incom<J of the assessee. · He has also-contended .that even the. existence of a trust wilhnake no difference, unless it can be held that the :money was diverted to that trust before it could become professional income in the hands of the assessee. '

,. We think that the question raised in this case can be decided by a very short· answer, and that answer js that frorri the facts found by .the Tribunal the proper legal inference is that the·sum of Rs. 32,500/- paid to the .assessee was his prefessional income at the time . when. it was paid and . no trust or obligation in t.he

nature of a trust was created !Lt that time, and when the a.ssessee created a trust by the trust deed ·of August 6, 1945, he applied pa.rt of his professional income as trust property. If that is the true conclu-sion as we hold it to be, then the principle Ia.id down r96o by the Privy Council in Bejoy-Singh Dudhuria's case(') --:- has no application. It is indeed true, a.s has been Co•;:;;~;~:: of observed by the High Court~ that a trust m~y be

v. created by any language sufficient t.o show the mten-Thakvr Da.< tion and uo teohnica.1 worqs a.re necessary. A trust

Dhargaoa may even be crested by the usn of wor1h which a.re

primarily ~ords of condition, but such wol'ds will con-s. K. Da• J. stitutc a. trust only " where the requisites of a. trust a.re

present, namely, where there are purposes independent of the donee to which the subject-matter of tho gift is required to be applied and an obligation on the donee to satisfy those purposes." The findings of the Tri-bunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did not use a.riy words of an imperative nature creating a trust or a.n obligation. They were anxious tO have the services of the a.ssessee in the Fa.rrukhnaga.r case; the asseSBee was at first unwilling to give his services and later he a.greed pro-posing that he would himself create a. charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyona any doubt by the statements ma.de in the trust deed of August 6, 1945. The assessee said therein that he was reserving his professional incolll'e as an advocate accruing aft~r June, 1944 for payments of taxes and oha.rity and, accordingly, when he recei-ved his professional income in the Fa.rrukhnagar case he created a oharita.ble trust out of the money so received. The clear statement in the trust deed, a statement accepted a.a correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a. legally enforce-able obligation on the assessee. Even in his affidavit the a.ssessee had stated that " it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on a.n absolutely clear and expreBB understanding that the money would not be used for any private and persona.I purposes." Even in this affidavit there is no sugges-tion that the persons who paid the money created the (1) [1933) 1 l.T.R. 135.

trust or imposed any obligation on the assessee. It was I96o the assessee's own voluntary desire that he would c -. -. create a trust out of the fees paid • to him . for defendmg • oininissioner of Income·tax the accused persons in the Farrukhnagar case. Such a v. voluntary desire on the part of the assessee created no Thakur Das trust, nor did it give rise to any legally enforceable Bhargava obligation. In the circumstances the Appellate Assis-s. tant Commissioner rightly pointed out that "if the K. Das]. accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere". In our opinion the view taken by the Appellate Assistant Commis-sioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money wheri received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of Rs. 32,500/- received by the assessee was professional income taxable in his bands.

Learned Counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhuria's Case (1) was applied, and has contended that where there is an allocation of a sum out of revenue a.s a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a. court, an arbitration a.ward or even the provisions of a will or deed. In view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our con-clusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him.

82 SUPREl\IE COURT REPORTS [1961]

Accordingly, we allow this appeal and set asido the judgment and order of the High Court. The answer Con1n11ssio11rr of to the question is in favour of the appellant, namely,

Income-tax

v. that the sum of Rs. 32,500/- received by the asscssee Thr1k.11r Vas was his professional income taxable in his hands. The 1Jhr1rxatia appell11.nt will be entitled to his costs throughout. S. K. Vas ].

Appeal allowed.

THE STATE OF UTTAR PRADESH

AND OTHERS

July •8.

!!.

}{AJA SYED MOHAMMAD SAADAT

ALI KHAN.

(S. K. DAS, M. HIDAYATULLAH and J.C. SHAH, JJ.) .... Agricultural Income-lax-Additional Collecior-PO'.vcr of Assess-ment-Amendi11g Act giving retrospective ejfecl to amendecl provi-sions-Prot-ision for re·vicw in the amendment Act-If offecls the powers of the appellate court-The United Provinces Agricultural Income-tax Act, 1949 (U. P. Ill of 1949)-United Provinces Land Revenue Act, 1901 (U.P. III of 1901).

The United Provinces Agricultural Income-tax Act, 1949, authorised imposition of a tax on agricultural income within the State, and the agricultural income-tax and 3uper-tax were charged on the total agricultural income of the previous year of the assessee. For the purposes. of the Act the Collector and the Assistant Collector were declared to be the assessing autho-rities within their respective revenue jurisdiction and the ex-pression" Collector" was to have the same meaning as in the United Provinces Land Revenue Act, 1901. Under the rules framed by the government under s. 44 of the Act an assessec having agricultural income in the jurisdiction of more than one assessing authority was to be assessed by the Collector of the district in which he permanently resided. The State Govern-ment of 1,;ttar Pradesh appointed :Mr. K. C. Chaudhry under sub-s. l of s. r4(A) of the United Provinces Land Revenue Act, 1901, to be the Additional Collector in District Bahraich and authorised him to exercise all the powers and perform all the duties of a "Collector " " in all classes of cases", Claiming to exercise the

CIVIL. APPELLATE JURISDICTION: Civil . Appeal, No. 236 ofl955.

Appeal from the judgment and order dated August 3, 1953, of the Punjab High Court in Civil Reference No. 7/195~.

M. C. · Setalvad, Attorney-General for India, K. N.

Rajagopal·Sastri and D: Gupta, for the appellant. ·

N. d. Chatterjee . and S. K. Sekhri, for the respond- ~~ ' .

' ' 1960. July 27. The Judgment of the Court was delivered by