DEVCHAND C SHAH Vs. COMMISSIONER OF EXPENDITURE TAX
LAWS(KAR)-1966-12-5
HIGH COURT OF KARNATAKA
Decided on December 15,1966

DEVCHAND C. SHAH Appellant
VERSUS
COMMISSIONER OF EXPENDITURE-TAX, MYSORE Respondents


Cited Judgements :-

COMMISSIONER OF GIFT TAX CENTRAL I VS. BASANT KUMAR ADITYA VIKRAM BIRLA [LAWS(CAL)-1981-7-49] [REFERRED TO]
GURUSAMY NAICKER VS. G JAYARAMAN [LAWS(MAD)-1995-4-17] [REFERRED TO]
CONTROLLER OF ESTATE DUTY JAIPUR VS. LATE SAGARMAL DAGA A/P SHRI MOTICHAND DAGA JAIPUR [LAWS(RAJ)-1993-4-15] [REFERRED TO]
CONTROLLER OF ESTATE DUTY VS. SAGARMAL DAGA LATE [LAWS(RAJ)-1993-4-11] [REFERRED TO (MYS),]
SECOND GIFT-TAX OFFICER VS. NIRMALA RAJASEKHARAN [LAWS(MAD)-1983-10-42] [REFERRED]


JUDGEMENT

Narayana Pai, J. - (1.)THIS is a reference under section 25(1) of the Expenditure-tax Act made to this court under the following circumstances :
The assessee is a Hindu undivided family consisting of one D. C. Shah as the karta and his son, Kiran D. Shah. The other relatives in the family are females, viz., Anasuya Bai, wife of the karta, and three daughters of theirs called Snehalata, Swarnalata, Ujwalalata. The eldest daughter was married on 24th December, 1959. A sum of Rs. 1,00,795 was spent for the marriage. When this amount was taken into computation for the purpose of expenditure-tax, the assessee objected to the inclusion pleading that the expenditure had not been incurred by the Hindu undivided family which is the assessee, but by D. C. Shah and his wife, Anasuya Bai, in their individual capacity out of the cash presents received by them from various persons in connection with the marriage. The receipt of these presents from various persons and the items of expenditure in connection with the marriage met out of them were all recorded in separately maintained books of account referred to in the reference as marriage khata book, marriage khird book and memorandum books, etc. Analysing the figures on the basis of the said accounts the result is stated as follows : Devchand, that is, D. C. Shah received a total sum of Rs. 70,233 as presents, his wife, Anasuya Bai, received Rs. 30,778 and the daughter (bride), Shehalata, received Rs. 77,774. It is common ground and undisputed that amounts presented to Snehalata were retained by her. The expenditure in connection with the marriage was, therefore, met, according to D. C. Shah and his wife, Anasuya Bai, out of the cash presents received by them as stated above.

(2.)THE original assessing authority rejected that contention. He took the view that the presents were not, or cannot be said to have been, received by D. C. Shah and his wife, Anasuya Bai, in their individual capacity, but must be regarded as amounts received by them for, and on account of, the undivided family itself. He observed :
"THE marriage was performed according to joint family traditions, and the receipts incidental to the marriage should also, therefore, be taken as receipts of the Hindu undivided family, although they might have been actually presented to Mr. D. C. Shah and Mrs. D. C. Shah. After all, the Hindu undivided family is constituted by the members and whatever the members receive by virtue of such membership should also be taken as receipts of the Hindu undivided family."

He also thought that even otherwise, the expenditure can be regarded as that of the family itself for purposes of taxation by virtue of either or both sub-sections (i) and (ii) of section 4 of the Expenditure-tax Act.

The assessee appealed to the Appellate Commissioner. He differed from the view taken by the assessing authority. Accepting the position upon facts, namely, that the presents had been received by D. C. Shah and Anasuya Bai, he held that there is no evidence to regard receipts of these presents as having been on account of the family. While he agreed that under the ordinary Hindu law, the obligation of meeting expenses of marriage of a daughter of the family was that of the family, he though that the provisions of the Hindu Adoption and Maintenance Act of 1956 imposing such a liability upon the parents would supersede the old Hindu law obligations resting on a joint family. Ultimately, he set aside the order of the assessing authority.

(3.)THE department then appealed to the Appellate Tribunal. THE Tribunal, after getting a further report from the assessing authority upon various point for investigation communicated by them in a remand order, disposed of the appeal finally by their order dated 1st August, 1964, allowing the appeal. THEreupon, the assessee moved the Tribunal under section 25 to refer certain questions of law arising out of their appellate order to this court under the said section. Agreeing with the contention that certain questions of law did arise out of the order, the Tribunal has formulated those questions as follows and referred them to this court :
"1. Whether, on the facts and in the circumstances of the case, there way any legal liability on the part of the assessee family to perform the marriage of Snehalata ?

2. Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 1,00,795 was properly treated as having been incurred by the Hindu undivided family ?

3. In the event of question No. 2 being answered in favour of the assessee, whether the incurring of the expenditure by Shri D. C. Shah and Smt. Anasuya Bai could be assessed in the hands of the Hindu undivided family by reference to the provisions of section 4(i) of the Act ?"

It appears to us that the first question was not a question which could have been properly made the subject of reference to the High Court under section 25 of the Expenditure-tax Act. It is a proposition of Hindu law and in ordinary circumstances would only have been a step in the course of the argument leading to the legality to tax. The probable reason for formulating a question of Hindu law as a distinct question for a reference under the Expenditure-tax Act appears to be the peculiar circumstances in this case in the Appellate Assistant Commissioner and the Tribunal taking different views on the question of the liability or obligation of the family or father in relation to the expenses in connection with the marriage of the daughter, Snehalata.



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