JOSHI, J. - (1.) THESE two references at the instance of the Commissioner of Expenditure Tax, Rajasthan, Jaipur relate to the same assessee, though for different periods and raise common questions and can be disposed of by one order. Reference No. 11 of 1969 is in respect of the assessment year 1958-59, while the reference No. 33 of 1969 relates to the three subsequent years 1959-60, 1960-61 and 1961-62.
(2.) COL. H. H. Sri Sawai Sir Tejsinghji Bahadur Maharaj Deo is ex-ruler of erstwhile Alwar Sta|te. For the relevant years referred to above he was an assessee under the Expenditure Tax Act, 1957 (herein-after called the 'act' ). The Expenditure Tax Officer made assessments upon the assessee on the taxable expenditure for all the aforesaid four years. While making assessment orders, the Tax Officer included the expenditure incurred by his wife, eldest son and minor daughter in the taxable expenditure of the assessed treating them his dependants under sec. 2 (g) of the Act. Being aggrieved the assessee preferred appeals before the Appellate Assistant Commissioner. The assessee there contended that his eldest son, wife and minor daughter were not his dependants as envisaged by sec. 2 (g) of the Act inasmuch as they were separately assessed to income-tax and wealth-tax and could not be said to be wholly or mainly! dependent upon the assessee for their maintenance and support. A further contention was put forth in regard to Maharaj Kumar Pratapsinghji the eldest son of the assessee that the allowance of Rs. 1,00,000/- which he has been getting from the assessee out of the Privy Purse, was under a legal right and in this connection the assessee relied upon Art. 10 (2) of the Covenant entered into by the Ruler of Alwar with the Government of India at the time of the marger of the State with Rajasthan. The Appellate Assistant Commissioner observed that the assessee's wife and minor daughter were undoubtedly dependants of the assessee and so far as the expenditure incurred by Maharaj Kumar Pratapsinghji was concerned he too was wholly dependent as he himself had no independent income of his own and the same was derived from the allowance given by the assessee out of the Privy Parse and assets made out of the savings therefrom. The Appellate Assistant Commissioner, therefore, upheld the view taken by the Expenditure Tax Officer. Being dissatisfied with the orders of the Appellate Assistant Commissioner, the assessee went before the Income Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") by way of appeals in respect of all the four years referred to above. The Tribunal so far as the assessment year 1958-59 was concerned held that none of the relatives of the assessee, namely, his wife, his daughter and his eldest son, on the facts found by it, could be taken to be wholly or mainly dependent upon the assessee as they themselves were assessees to income-tax and wealth tax. The Tribunal, therefore, excluded the expenditure incurred by Maharani Smt. Chand Kanwar, Maharaj Kumar Pratapsinghji and Princess Bhanu Kanwar from the assessment of the assessee for the year 1958-59. The Tribunal arrived at this finding on the interpretation of the term "dependant", as was prevalent during the relevant assessment year (1958-59) and also from the fact that they maintained separate mess and residence and were separate assessees in their own rights. As regards the subsequent years, namely, 1959-60 to 1961-62, the Tribunal in view of the amendment in the definition of the term "dependant" with effect from 1st April, 1959 held that Maharani Chand Kanwar, the spouse of the assessee, and Princess Bhanu Kanwar, the minor daughter of the assessee were covered by the amended statutory definition of "dependant" and, therefore, expenditure incurred by them during the assessment years 1959-60 to 1961-62 was rightly clubbed with that of the assessee. As regards Maharaj Kumar Pratapsinghji, the Tribunal reiterated the reasons which it had advanced for the year 1958-59 while dealing with his case and observed that the position did not change so far as Maharaj Kumar Pratapsinghji was concerned, even after the amendment of the definition of the term "dependant" and, therefore, excluded the expenditure incurred by him from the assessment of the assessee. So far as the assessment year 1958-59 is concerned the Commissioner, Expenditure Tax felt aggrieved and moved the Tribunal to state the case and refer the question of law framed by it to this Court for its opinion. The Tribunal, therefore, referred the following question at the instance of the Commissioner, Expenditure Tax to this Court and has sought our opinion thereon : - "whether on the facts and in the circumstances of the case, the assessee's wife, major son and minor daughter were dependants within the meaning of sec. 2 (g) of the Expenditure Tax Act?"
(3.) MR. Sumer Chand Bhandari, the learned counsel for the Revenue, challenged the finding of the Tribunal and urged that the wife, the major son and the minor daughter were dependants of the assessee and the Tribunal was wrong in holding to the contrary. His first point of attack was that the Tribunal's finding was not at all based upon the evidence on record but was influenced by irrelevant considerations and was therefore vitiated. In fact, he wanted us to examine the finding of the Tribunal afresh by re-appraising the evidence. We are, however, unable to accede to the request of the learned counsel for the Revenue in this regard. Ordinarily, the Tribunal's findings on facts are final. Obviously, the question framed assumes the facts found by the Tribunal to be true and does not leave any room for raising controversy in that behalf. We may in this connection refer to Aluminium Corporation of India Ltd. vs. Commissioner of Income-tax, West Bengal (l ). In that case it has been held that when a question refers to the facts and circumstances in the case, it means the facts and circumstances as found by the Tribunal. If any party wants to challenge the correctness of the findings given by the Tribunal either on the ground that the same is not supported by any evidence on record or is based on irrelevant or inadmissible evidence or is unreasonable or perverse, a reference raising any one of these grounds must be sought for and obtained. Neither any ground has been raised on behalf of the Commissioner nor a reference obtained to challenge the finding of fact recorded by the Tribunal in the instant case. It is, therefore, too late in the day for the learned counsel for the Revenue to raise such a ground. The sole question for determination is whether the wife, major son and the minor daughter are dependants of the assessee so as to include expenditure incurred by them in the expenditure incurred by the assessee. The Tribunal has recorded a finding of fact that these persons so far as the year 1958-59 is concerned were not dependant within the meaning of sec. 2 (g) of the Act. The unamended definition of "dependant" given in sec. 2 (g) of the Act as applicable to the assessment year 1958-59 reads as under : ""dependant" means,- (i) where the assessee is an individual, his or her spouse or child wholly or mainly dependent on the assessee for support and maintenance; (ii) where the assessee is a Hindu Undivided family - (a) every coparcener other than the Karta; and (b) any other member of the family who under any law or order or decree of a court, is entitled to maintenance from the joint family property. " From a perusal of the definition it will appear that for the spouse or child of the assessee to be dependant, it was necessary that they must wholly or mainly be dependent on the assessee for support and maintenance. Merely because one happens to be a wife or a child would not necessarily lead to an inference that he or she was dependant of the assessee. The Tribunal has recorded a finding of fact that the major son, the wife and the minor daughter of the assessee were separate assessees and had separate residence and mess and were not dependent upon him for support or maintenance. This finding, as already stated above, is not open to challenge and it conclusive so far as this year is concerned. The wife, the major son and the minor daughter, therefore, could not be termed as "dependant" within the meaning of sec. 2 (g) as it stood in the relevant year, that is, 1958-59. It was argued on behalf of the Revenue that as the payment of rupees One lakh to the assessee's son has been held to be exempt from tax under sec. 5 (q) (iv) of the Act, the assessee after having secured such exemption cannot contend that his son is not dependent upon him. Sec. 5 (q) (iv) of course exempts the expenditure incurred upon the maintenance of any relative dependent upon the assessee. The Tribunal having relied upon the provisions of S. 5 (j) and Darshan Surendra Parekh vs. Commissioner of Expenditure-Tax, Gujarat (2) repelled this contention. We have carefully considered the argument of the learned counsel for the assessee. Sec. 5 (q) (iv) reads as under : - "out of Privy Purse amount - clause (q) - In case of Rulers, the following types of expenditure out of their Privy Purse amounts, would enjoy exemption under this clause, namely, expenditure incurred - x x x (iv) for the maintenance of any of the relatives dependent upon him for maintenance; x x x. " The fields of operation of sec. 5 (q) (iv) and sec. 2 (g) are distinct. Sec. 5 (q) refers to the expenditure incurred on the maintenance of the relatives out of the Privy Purse and sec. 2 (g) on the other hand lays down that if a son is wholly or mainly dependent upon the assessee his expenditure incurred by him shall be included in the taxable income of the assessee irrespective of the fact that expenses of maintenance are met from the amount of Privy Purse or other source of income of the assessee. We, therefore, see no error in the finding of the Tribunal when it has held that the assessee did not claim exemption on the footing that the son was his dependant as he was granted allowance from the Privy Purse. The conclusion therefore is irresistible that these persons were not dependants of the assessee within the meaning of sec. 2 (g) of the Act. ;