VISWASOM S Vs. COMMISSIONER OF INCOME TAX
LAWS(KER)-1963-6-13
HIGH COURT OF KERALA
Decided on June 13,1963

S. VISWASOM Appellant
VERSUS
COMMISSIONER OF INCOME-TAX, KERALA. Respondents


Cited Judgements :-

SHARDABEN JAYANTILAL MULJI VS. COMMISSIONER OF WEALTH TAX [LAWS(BOM)-1975-11-11] [REFERRED TO]
MATHEW VARGHESE VS. ROSAMMA VARGHESE FB [LAWS(KER)-2003-7-34] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. PAILY PILLAI P M [LAWS(KER)-1971-11-45] [OVERRULED]
COMMISSIONER OF GIFT TAX VS. M C GEORGE [LAWS(KER)-2001-11-30] [REFERRED TO]


JUDGEMENT

- (1.)THIS is a reference by the Income-tax Appellate Tribunal, Madras Bench, under section 66(1) of the Indian income-tax Act, 1922. The question referred are :
"(1) Whether, on the facts and in the circumstances of the case, the settlement dated May 19, 1956, executed by the assessee in favour of his three minor sons admitted to be genuine is a transfer otherwise than for adequate consideration within the meaning of section 16(3)(a)(iv) ?

(2) If the answer to the first question is in the negative, whether the inclusion of the income from the properties covered by the said settlement deed subsequent to May 19, 1956, in the assessees assessment for 1957-58 is valid ?"

(2.)THE department has no case that the document does not represent a genuine transaction or that the recitals therein are in any way false or incorrect. THE only contention before us is that the transfer in favour of the three minor sons of the assessee was not a transfer for adequate consideration.
Section 16(3)(a)(iv) of the Indian Income-tax Act, 1922, provides that in computing the total income of any individual for the purpose of assessment there shall be included so much of the income of a minor child of such individual as arises directly or indirectly "from assets transfer directly or indirectly to the minor child, not being a married daughter, by such individual otherwise than for adequate consideration". According to the assessee the transfer in favour of his minor children was for adequate consideration and on inclusion of their income from the properties transferred is permissible in computing his total income for the purpose of assessment.

We are inclined to accept this contention. The document concerned is given as annexure "A" to the statement of the case and reads as follows :

"THIS SETTLEMENT IS made on the 19th day of May, 1956, by S. Viswasom, son of Samikkannu Nadar of Kovilpatti, now residing at Neyyattinkara, Neyyattinkara Taluk, Trivandrum District, in Travancore & Cochin State, hereinafter referred to as Settlor, unto and in favour of minor sons (1) Maria Jasu, (2) George Peter, (3) Francis Xavier, aged 7, 5 1/2 and 4 year respectively, hereinafter referred to as the Settlees, represented herein by their mother and guardian, Maria Thangammal, wife of the above settlor.

WHEREAS the Settlor is carrying on business in the said Neyyattinkara town.

WHEREAS the Settlor has acquired properties in the course of his business.

WHEREAS the Settlees are the minor sons of this Settlor.

WHEREAS the mother of the Settlees has been making frequent demands on this Settlor for making suitable and adequate provisions for the maintenance and education of the Settlees and consequently there has been misunderstandings between the Settlor and the mother of the Settlees.

WHEREAS the Settlor is under a legal and imperative duty to maintain the Settlees according to their status in life and in the standard of comfort to which they are accustomed and give them suitable education.

WHEREAS the Settlor is anxious and desirous of making during his lifetime adequate provisions in fulfilment of his legal obligation to the Settlees.

Now that in pursuance of the said desire and the legal duty and obligation cast on him.

(3.)THE Settlor as owner of the properties scheduled hereunder hereby conveys by way of settlement to the Settlees the properties mentioned fully and described in the Schedule hereunder written.
The Settlees shall enter into possession of the properties forthwith and hold the same absolutely with full and absolute rights of ownership, with equal shares amongst themselves.

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