DERBYSHIRE, J. - (1.) THIS matter arises of a statement of case under the Indian Income Tax Act, 1922, Section 66, by the Commissioner of Income Tax of Bengal. For the year of assessment 1933 -34, the Income Tax Officers, for District III (1) made an assessment in respect of certain property in Calcutta, called the Norton Buildings. In the assessment the name of assessee was stated to be B. N. Elias for self and for B. S. Benjamin, Sir Victor Season and A. J. Raymond, 19 -D, Bowbazaar Street. Status (whether individual, registered or unregistered firm, Hindu undivided family, company or other associations of individuals). Associations of individuals. Sources of income with exact nature of business - House property. It was stated that the members of the association have the following interest. B. N. Elias - One -third, B. S. Benjamin - One -third, Sir Victor Sasson - One -sixth and A. J. Raymond - One -sixth. The income returned was Rs. 68,209. On that the aforesaid individuals were charged to tax as follows : Income Tax - Rs. 8,881 -6; Surcharge on income tax Rs. 2,220 6 -0; Super Tax - Rs. 2,360 -1 -0; surcharge on super tax - Rs. 590 in all Rs. 14,051 -13 -0. It is said by the assessees that this assessment is wrong, because it assesses them as an 'association of individuals' and thus exposes them to a higher rate, and a higher amount of both income tax and super tax.
(2.) THE history of the ownership of this property, as far as it is relevant in this case, is as follows. By a deed of conveyance, dated the 9th January, 1920, this property was purchased by Ranchael Bekhor, Captain E. V Sassoon A. J. Raymond and B. N. Elias, and their respective shares in the property purchased were one third, one -sixth, one sixth, and one third. In the deed of purchase those four indivisuals were described as the purchasers. The deed says 'the purchasers, which expression shall, unless excluded by or repugnant to the context include them and each of them and their and each of their heirs, executors, administrators, representatives and assigns of the third part.' The deed also recites that the purchasers were to have and to hold the said premises.... absolutely and 'for ever as tenants in common in the following shares or proportions.' The Proportions have been set out above.
(3.) ON the 15th September, 1921. Rachael Bekhor by a deed of that date declared that her share of the cost of the building had been provided by Mr. Benjamin and that share was conveyed to her in trust by Mr. Benjamin and that she undertook to convey the said property, or any part of it, to such person or persons as Mr. Benjamin might direct and that Mr Benjamin was then the owner of the one third share originally belonging to Rachael Bekhor. We are told that this property is let out as offices. In 1920, E. V. Sassoon, Rachael Bekhor, and A. J. Raymond executed a power of attorney which recited as follows : 'Whereas we jointly or severally are now seized or possessed or may hereafter become seised or possessed of lands, messages and tenements at Calcutta and whereas we are desirous of appointing some fit, and proper person to transact, conduct and manage on our behalf affairs in relation thereto and have for such purpose selected Benjamin Nissim Elias of Calcutta, now know ye that we the said Ellice Victor Sassoon, Rachael Nissim Bekhor and Abraham Jacob Raymond jointly and severally do and each and every of us do the by these presents make, constitute and appoint the said Benjamin Nissim Elias our true and lawful attorney for us and in our name on for and in the name of any of us - 1. To conduct and manage all and singular our affairs in relation to lands, messuages and tenements of which we are or any of us may hereafter be jointly or severally seized or possessed at Calcutta.' 2. For the purpose aforesaid to demand recover and take possession of all and singular the lands, messages, tenements now belonging or which may hereafter belong to us or any of us absolutely or by way or equitable mortgage or in which we have or any of us has a beneficial interest either along or jointly with others and to view the state thereof and to give proper notices and direction for repairing the same and to oversee, let, sublet and manage the same. 3. To pay or allow all taxes, rates, charges expenses and out going due and payable or to become due and payable for on account of the said lands and immovable properties. 4. To contract with any person for leasing all or any of our immovable properties and any such person to let into possession thereof and to set fines for new leases and to accept surrender of leases and for that purpose for us and in our name and for and in the name of any of us to make, seal, deliver and execute any lease or grant or other lawful deed and instrument whatsoever which shall be necessary or proper in that behalf and also in our name or in the name of any of us to sign and give lawful notice to quit to any tenant of the said premises. 5. For us and in our name and for our benefit or for and in the name of and for the benefit of us to enter into sign, execute, seal and deliver such agreement or agreements with any firm or individual as may be necessary for the sale, exchange or letting on lease of any of our immovable properties and also to sign, execute, seal and deliver all conveyances, deeds, supplicates receipts and other documents required to be signed or executed and to carry such agreement or agreements into effect and to appear before such Collector, Special Collector and other authorities and to give all such consents and do all such acts in the premises as to the Attorney may appear to be necessary or desirable. 6. For us and in our name or for and in the name of any of us to ask, receive and recover from all receivers, tenants and all other occupiers whatsoever of any of our lands, houses, hereditaments and other immovable properties all rents, arrears of rent, services, issues, profits, emoluments and sums of money now due, owing and payable or at any time hereafter to become due, owing and payable in respect of same premises in any manner whatsoever and also on nonpayment of or of any part thereof to enter and distrain and the distress and distresses there found to retain and keep or to sell and dispose of according to law. 7. For us and in our name or for and in the name of any of us to sell all or any part of our lands, hereditaments, houses and other immovable properties and to give receipts for all or any part of the purchase or other consideration money. Then follow other provisions : '9. For us and in our name and for and in the name of any of us to appear before any Registrar or Joint Registrar or Sub -Registrar of Assurances or other the proper officer or officers appointed under any Act for the time being in force for the registration of deeds, assurances, contracts or other instruments and there and then or at any time thereafter to present for registration and register or cause to be registered this Power of Attorney and any deed or document executed here under and answer such enquiries, make acknowledgments and sign such papers and documents as may be necessary and also to do and execute such further acts and things as may be deemed expedient for registering or otherwise giving validity according to law to any deed or deeds or instruments which may be necessary for effectuating any act empowered by these presents'.;