{"id":113605,"date":"1963-03-26T00:00:00","date_gmt":"1963-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-c-m-kothari-madras-dead-and-on-26-march-1963"},"modified":"2016-01-07T16:53:47","modified_gmt":"2016-01-07T11:23:47","slug":"commissioner-of-income-tax-vs-c-m-kothari-madras-dead-and-on-26-march-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-c-m-kothari-madras-dead-and-on-26-march-1963","title":{"rendered":"Commissioner Of Income-Tax, … vs C.M. Kothari, Madras (Dead), And … on 26 March, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Income-Tax, … vs C.M. Kothari, Madras (Dead), And … on 26 March, 1963<\/div>\n
Equivalent citations: 1964 AIR 331, \t\t 1964 SCR (2) 531<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Hidayatullah, M.<\/div>\n
           PETITIONER:\nCOMMISSIONER OF INCOME-TAX, MADRAS\n\n\tVs.\n\nRESPONDENT:\nC.M.  KOTHARI,\tMADRAS\t(DEAD),\t AND  AFTER  HIM  HIS  LEGAL\n\nDATE OF JUDGMENT:\n26\/03\/1963\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, S.K.\nSARKAR, A.K.\n\nCITATION:\n 1964 AIR  331\t\t  1964 SCR  (2) 531\n CITATOR INFO :\n D\t    1965 SC 866\t (10,11)\n\n\nACT:\nIncome\tTax-Income from property in the name of\t wife--Money\ncoming\tinto  the  hands of wife  from\thusband\t indirectly-\n--Whether income of wife to be included into that of husband\n\"Transferred  directly or indirectly to the  wife,\"  Meaning\nof--Indian Income-tax Act, 1922 (11 of 1922), s. 16 (3)\t (a)\n(iii).\n\n\n\nHEADNOTE:\nMessrs\tKotbari\t and Sons is a firm of stock  brokers.\t The\nfirm consisted of Shri C. M. Kothari and his two sons,\tShri\nD. C. Kothari and Shri H. C. Kothari.  The firm entered into\nan  agreement  for the purchase of a house and\tthe  earnest\nmoney was paid by it.  Later on, the house was bought in the\nname  of Mrs. C. M. Kothari, Mrs. D. C. Kothari and Shri  H.\nC. Kotliari.  The house was bought for Rs. 90,000\/- and both\nMrs. C. M Kothari and Mrs. D. C. Kothari received Rs. 30,000\neach from the firm.  In the case of Mrs. C. M. Kothari,\t she\ngot that amount in the form of birthday gift and Diwali gift\nfrom  her  son,\t D. C. Kothari.\t Mrs.  D.  C.  Kothari\talso\nreceived Rs. 30,000 from the firm as a gift from Shri C.  M.\nKothari, her father-in-law.  The Income-tax Officer assessed\nthe  income of Mrs. C. M. Kothari and Mrs. 1).\tC.  Kotliari\nfrom  the said house as the income of their  husbands.\t The\nappeals\t of  the assessees were dismissed by  the  Appellate\nAssistant  Commissioner\t and  the  Tribunal.   The  Tribunal\nconfirmed the finding of the Income Tax Officer that the two\nladies\thad  acquired their shares in the house out  of\t the\nassets\tof  their husbands indirectly transferred  to  them.\nHowever, the Tribunal did not hold that the transaction\t was\nbenami.\nThe Tribunal referred the case to the High Court for opinion\nwhether the income arising to Mrs. C. M. Kotbari and Mrs. D.\nC.  Kothari  from  the\tproperty arose\tout  of\t the  assets\ntransferred  indirectly by their husbands so as\t to  attract\nthe provisions of s. 16 (3) (a) (iii) of the Income-tax Act,\n1922.The High Court answered the reference in the  negative.\nThe  Commissioner of Income-tax, Madras, came to this  Court\nin appeal.\n532\nHeld  that  the answer given by the High Court must  be\t set\naside  and  the\t reference  made by  the  Tribunal  must  be\nanswered  in the affirmative.  The object of law is  to\t tax\nthe  income of the wife in the hands of the husband  if\t the\nincome of the wife arises to her from assets transferred  to\nher   by  her  husband.\t  In  the  present  case,  the\t son\ntransferred  the assets to his mother and the  father-in-law\ntransferred  his  assets to his daughter-in-law.   The\tterm\n\"indirectly\" is intended to cover such tricks.\nIf  two transfers are inter-connected and are parts  of\t the\nsame  transaction in such a way that it can be said  that  a\ncircuitous method has been adopted as a device to evade\t the\nimplications  of  s. 16 (3) (a) (iii), the  case  will\tfall\nwithin\tthis  section.\tIn the present case, the  device  is\npalpable   and\tthe  two  transferrers\tare  so\t  intimately\nconnected  that they cannot but be regarded as a part  of  a\nsingle\ttransaction.  It was not successfully explained\t why\nthe father-in-law made a big gift to his daughter-in-law and\nthe son made an equally big gift to his mother.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 34 to 36 of
\n1962.\n<\/p>\n
Appeals from the judgment and order dated March 25, 1958, of
\nthe Madras High Court in Case Referred No. 12 of 1954.
\nK.   N.\t Rajagopal  Sastri  and\t R.  N.\t Sachthey,  for\t the
\nappellant.\n<\/p>\n
R. Gopalakrishnan, for the respondent.\n<\/p>\n
1963.  March 26.  The judgment of the Court was delivered by
\nHIDAYATULLAH   J.- The High Court of Madras  in\t a Reference
\nunder s.66 (1) of the Indian Income Tax Act, answered in the
\nnegative the following question:-\n<\/p>\n
\t      “Whether there was material for the  Appellate
\n\t      Tribunal\tto hold that the income\t arising  to
\n\t      Mrs. C.M. Kothari and Mrs. D. C. Kothari\tfrom
\n\t      the property arose indirectly out of the
\n\t       533<\/span>
\n\t      assests\ttransferred  indirectly\t  by   their
\n\t      husbands\tso as to attract the  provisions  of
\n\t      s.16 (3)(a)(iii).”\n<\/p><\/blockquote>\n
In our opinion, these appeals by the Commissioner of Income-
\ntax., Madras, must be allowed.\n<\/p>\n
Messrs\tKothari\t and Sons is a firm of\tstock  brokers.\t  In
\n1947,  the firm consisted of C.M. Kothari and his two  sons,
\nD. C. Kothari and H. C. Kothari Their respective shares were
\n6  :  5 : 5. On October 7, 1947, the firm  entered  into  an
\nagreement  for\tthe purchase of a house\t in  Sterling  Road,
\nMadras,\t for Rs.90,000, and the same day paid an advance  of
\ns.5,000.  This sum was debited in the books of the  firm  to
\nthe accountsof the three partners as follows:-\n<\/p>\n
     C. M. Kothari    Rs.1,800\n     D. C. Kothari    Rs.1,600\n     H. C. Kothari    Rs.1,600\n      Total.\t      Rs.5,000\n<\/pre>\n
The transaction was completed on October 24, 1947.  The sale
\ndeed,  however, was taken in the names of Mrs. C.M.  Kothari
\nMrs.  D.C.  Kothari and H.C. Kothari.  The  balance  of\t the
\nconsideration was paid to the vendors by the firm.  Each  of
\nthe  two ladies paid to the firm a cheque of  Rs.28,333-5-4.
\nMrs.  C.M. Kothari further paid a cheque of Rs.\t 1,800,\t and
\nMrs.  D.C. Kothari paid another cheque of Rs. 1600 Thus\t the
\ntwo ladies paid one-third share of Rs.85,000 and the amounts
\nwhich  were respectively paid by their husbands as  part  of
\nthe earnest money.  H.C. Kothari was debited with a  further
\nsum  of Rs.28,333.5-4. In this way, Mrs. C. M.\tKothari\t pad
\nRs.200\tmore  than the other two, because  her\thusband\t had
\npreviously paid Rs.200 more than his sons.  The share of the
\nthree vendees was however, Shown to be one-third each.\n<\/p>\n
534<\/span><\/p>\n
The  ladies issued the cheques on their accounts into  which
\nwere  paid  by the firm, certain amounts by  cheques.\tInto
\nMrs. C.M. Kothari’s account was paid an amount of  Rs.27,000
\nwhich  was debited on October 24, 1947 to D.C. Kothari.\t  It
\nwas  stated to be a birthday gift by him to his mother.\t  On
\nNovember 13, 1947, another amount of Rs. 3,000 was paid into
\nMrs.  C.  M.  Kothari’s account which  was  debited  to\t the
\naccount of D. C. Kothari as a gift by him to his mother\t for
\nDewali.\t  Similarly,  on  November  13,\t 1947  Mrs.  D.\t  C.
\nKothari’s  account with the bank was credited with a sum  of
\nRs.30,000 by a cheque issued by the firm.  This was  debited
\nto  the account of C, M. Kothari and was shown as a gift  by
\nhim  to\t his daughter-in-law.  In this way both\t the  ladies
\nreceived  from the firm Rs. 30,000 which was the exact\tone-
\nthird  share  of  the consideration of\tRs.90,000,  but\t the
\namount was not paid by their respective husbands, but by the
\nson in one case, and the father-in-law,, in the other.
\nIn the assessment years 1948-49, 1950-51 and 1951-1952,\t the
\nIncome Tax Officer assessed the incomefrom  the\t one-third
\nshare of the house received by\t   Mrs.\t C.M.Kothari as\t the
\nincome of her husband.Similarlyin  the\tfour  assessment
\nyears  1948-49 to 1951-52, the income of Mrs. D. C.  Kothari
\nfrom  this house was assessed as the income of her  husband.
\nThis  was on the ground that because of the  interchange  of
\nthe  money in the family, either the purchases were made  by
\nthe   donors  benami  in  the  names  of  the\tdonees,\t  or
\nalternatively,\tfrom  assets transferred indirectly  by\t the
\nhusband\t to the wife in each case.  The Income\tTax  Officer
\npointed\t out  that the birthday of Mrs. C.  M.\tKothari\t had
\ntaken place earlier in the year and there was no occasion to
\ngive a birthday present to her several months later  and
\non a date coinciding   with   the  purchase   of   this
\nproperty.   The\t Income Tax Officer also found that  in\t the
\npast,  the father-in-law bad never given
\n 535<\/span>
\nsuch a big present to his daughter-in-law on Dewali and this
\ntime  there was no special circumstance to justify it.\t The
\nappeals\t  of  the  assessee  to\t the   appellate   Assistant
\nCommissioner failed as also those filed before the Tribunal.
\nThe Tribunal, however, did not hold that the transaction was
\nbenami, but confirmed the other finding that the two  ladies
\nbad  acquired their share in the house out of assets of\t the
\nhusbands indirectly transferred to them.  The Tribunal, how-
\never,  stated a case for the opinion of the High Court,\t and
\nthe High Court answered the question in the negative.
\nAs  the\t question whether the two transactions\twere  benami
\ndoes  not  fall\t to be considered, the\tonly  question\tthat
\nsurvives  is  whether this case is covered Sy s.16  (3)\t (a)\n<\/p>\n
(iii).\tThis section reads as follows:-\n<\/p>\n
\t      “16(3).  In computing the total income of\t any
\n\t      individual  for  the  purpose  of\t assessment,
\n\t      there shall be included-\n<\/p><\/blockquote>\n
\t      (a)So  much of the income of a  wife……  of
\n\t      such   individual\t  as  arises   directly\t  or
\n\t      indirectly-\n<\/p><\/blockquote>\n
\t      (iii)From\t  assets  transferred  directly\t  or
\n\t      indirectly   to  the  wife  by   the   husband
\n\t      otherwise\t than for adequate consideration  or
\n\t      in  connection  with  an\tagreement  to\tlive
\n\t      apart;”\n<\/p><\/blockquote>\n
The  section  takes into account not  only  transference  of
\nassets\tmade  directly\tbut also  made\tindirectly.   It  is
\nimpossible to state here what sorts are covered by the\tword
\nindirectly’,   because\tsuch  transfers\t may,  be  made\t  in
\ndifferent ways.\n<\/p>\n
It is argued that the first requisite of the section is that
\nthe assets must be those of the husband and
\n536<\/span>
\nthat is not the case here.  It is true that the section says
\nthat  the assets must be those of the husband, but  it\tdoes
\nnot mean that the same assets should reach the wife.  It may
\nbe  that the assets in the course of being transferred,\t may
\nbe  changed  deliberately  into assets of a  like  value  of
\nanother\t person,  as has happened in the  present  case.   A
\nchain  of  transfers,  if  not\tcomprehended  by  the\tword
\n“Indirectly’ would easily defeat the object of the law which
\nis  to\ttax  the  income of the wife in\t the  hands  of\t the
\nhusband, if the income of the wife arises to her from assets
\ntransferred  by\t the  husband.\t The  present  case  is\t  an
\nadmirable instance of how indirect transfers can be made  by
\nsubstituting the assets of another person who has  benefited
\nto  the\t same  or  nearly  the\tsame  extent  from   assests
\ntransferred to him by the husband.\n<\/p>\n
It  is\tnext contended that even if  chain  transactions  be
\nincluded,  then,  unless  there\t is  consideration  for\t the
\ntransfer  by the husband, each transfer must be regarded  as
\nindependent, and in the present case, the Department has not
\nproved\tthat the transfers by the son to the mother  and  by
\nthe  father-in\tlaw  to his  daughter-in-law  were  made  as
\nconsideration  for each other.\tWe do not agree.  It is\t not
\nnecessary   that  there\t should\t be  consideration  in\t the
\ntechnical  sense.  If the two transfers are  inter-connected
\nand are parts of the same transaction in such a way that  it
\ncan be said that the circuitous method has been adopted as a
\ndevice to evade implications of this section, the case\twill
\nfall  within  the  section.  In this  case,  the  device  is
\npalpable  and the two transfers are so intimately  connected
\nthat  they  cannot  but\t be  regarded  as  parts  of  single
\ntransaction.  It has not been successfully explained why the
\nfather-in  law made such a big, gift to his  daughter-in-law
\non  the\t occasion of Diwali and why the son made  a  belated
\ngift,  equally\tbig, to his mother on the  occasion  of\t her
\nbirthday which took place several months before.  These\t two
\ngifts match each other as regards the amount, The
\n 537<\/span>
\nHigh Court overlooked the clear implication of these fact as
\nalso  the  Implication\tof the fact that  though  the  three
\npurchasers  were  to get one-third share each,\tMrs.  C.  M.
\nKothari\t paid Rs. 200 more than the other two and that\teach
\nof  the ladies re-paid the share of earnest money  borne  by
\ntheir  respective husbands.  An intimate connection  between
\nthe  two  transactions, which were primafacie  separate,  is
\nthus  clearly established and they attract the words of\t the
\nsection, namely, “transferred directly or indirectly to\t the
\nwife”.\n<\/p>\n
In  our\t opinion, the High Court was in\t error\tin  ignoring
\nthese pertinent matters.  The High Court also overlooked the
\nfact that the purchase of the house at first was intended to
\nbe in the names of three partners of the firm.\tNo  evidence
\nwas tendered why there was a sudden change.  It is difficult
\nto see why the ladies were named as the vendees if they\t did
\nnot  have  sufficient funds of their own.  They\t could\tonly
\nbuy-  the property if some one gave them the money.   It  is
\nreasonable   to\t infer\tfrom  the  facts  that\tbefore\t the
\nrespective husbands paid the amounts, they looked up the law
\nand  found  that the income of the property would  still  be
\nregarded as their own income if they transferred any  assets
\nto  their wives.  They hit upon the expedient that  the\t son
\nshould transfer the assets to his mother, and the  father-in
\nlaw, to the daughterin-law, obviously failing to  appreciate
\nthat the word “indirectly’ is meant to cover such tricks.
\nThe  appeals  must, therefore, succeed.\t The answer  of\t the
\nHigh  Court  is vacated, and the question, answered  in\t the
\naffirmative.   The respondent shall bear the costs of  these
\nappeals\t as also the costs in the High Court.\tOne  hearing
\nfee.\n<\/p>\n
\t\t\t   Appeals allowed,
\n538<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Income-Tax, … vs C.M. Kothari, Madras (Dead), And … on 26 March, 1963 Equivalent citations: 1964 AIR 331, 1964 SCR (2) 531 Author: Hidayatullah Bench: Hidayatullah, M. PETITIONER: COMMISSIONER OF INCOME-TAX, MADRAS Vs. RESPONDENT: C.M. KOTHARI, MADRAS (DEAD), AND AFTER HIM HIS LEGAL DATE OF JUDGMENT: 26\/03\/1963 BENCH: HIDAYATULLAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-113605","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Income-Tax, ... vs C.M. 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