{"id":197744,"date":"1961-01-03T00:00:00","date_gmt":"1961-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tulsidas-kilachand-vs-the-commissioner-of-on-3-january-1961"},"modified":"2018-03-22T15:05:40","modified_gmt":"2018-03-22T09:35:40","slug":"tulsidas-kilachand-vs-the-commissioner-of-on-3-january-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tulsidas-kilachand-vs-the-commissioner-of-on-3-january-1961","title":{"rendered":"Tulsidas Kilachand vs The Commissioner Of … on 3 January, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tulsidas Kilachand vs The Commissioner Of … on 3 January, 1961<\/div>\n
Equivalent citations: 1961 AIR 1023, \t\t 1961 SCR (3) 351<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Hidayatullah, M.<\/div>\n
           PETITIONER:\nTULSIDAS KILACHAND\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME-TAX,BOMBAY CITY I.[And connected\n\nDATE OF JUDGMENT:\n03\/01\/1961\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nKAPUR, J.L.\nSHAH, J.C.\n\nCITATION:\n 1961 AIR 1023\t\t  1961 SCR  (3) 351\n CITATOR INFO :\n RF\t    1961 SC1059\t (6)\n RF\t    1968 SC 189\t (13)\n R\t    1972 SC   7\t (22)\n R\t    1981 SC1274\t (25)\n\n\nACT:\nIncome Tax-Holder of shares becoming trustee for the benefit\nof  wife-Liability  to tax  of\tsuch  shareholder--\"Adequate\nconsideration\",\t meaning of-Indian Income-tax Act, 1922\t (11\nof 1922), ss. 16(1)(c), 16(3)(a)(iii), 16(3)(b).\n\n\n\nHEADNOTE:\nBy  a  deed  dated  March 5,  1951,  the  appellant  made  a\ndeclaration of trust in favour of hiswife as follows:  \"I\nhereby\t  declare that I hold 244 sharesupon  trust  to\npay the\t  income thereof to my wifefor\t a  period   of\nseven  years  from the date hereof or her  death  (whichever\nevent  may be earlier) and I hereby declare that this  trust\nshall  not be revocable\".  In the year of account,  1951,  a\nsum  of Rs. 30,404 was received as dividend income on  those\nshares\tand  the  appellant claimed  before  the  income-tax\nauthorities  that this sum was not liable to be included  in\nhis total income in view of the third proviso to s. 16(1)(c)\nof  the\t Indian-Income-tax  Act, 1922, but  this  claim\t was\nrejected  on the ground that the case was covered either  by\ns.  16(3)(a)(iii)  or  by  s.  16(3)(b)\t of  the  Act.\t The\nappellant's  contention\t was that under the  deed  of  trust\nthere was no transfer of assets either to the wife or to any\nperson for the benefit of the wife but merely a creation  of\na  trust in respect of the shares, the dividends from  which\nwere payable to the wife, that even if it be held that there\nwas such a transfer, it was for adequate consideration being\nfor  love and affection which was a good consideration,\t and\nthat   thus  s.\t 16(3)(a)(iii)\tor  s.\t16(3)(b)   was\t not\napplicable.\nHeld,  that on a true construction of the deed\tdated  March\n15, 1951, there was a transfer of the shares by the  husband\nto himself as a trustee for the benefit of the wife and that\neven  though  the husband was the same\tindividual,  in\t his\ncapacity  as  a\t trustee he must be  regarded  as  a  person\ndistinct from the transferor.\nHeld, further, that the words \"adequate consideration\" in s.\n16(3) of the Indian Income-tax Act, 1922, denoted considera-\ntion other than mere love and affection, which, in the\tcase\nof a wife, may be presumed.\nAccordingly, the present case fell within s. 16(3)(b) of the\nAct and not within the third proviso to s. 16(i)(c).\nProvat Kumar Mitter v. Commissioner of 'Income-tax, [1961] 3\nS.C.R. 37, distinguished.\n352\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 134 to\t 137
\nof 1959.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nSeptember  20,1957, of the Bombay High\tCourt in Income\t Tax
\nReference No. 14 of 1957.\n<\/p>\n
R….J.\t Kolah,\t S. N. Andley, J. B.  Dadachanji,  Rameshwar
\nNath and P. L. Vohra, for the appellants.\n<\/p>\n
K….N. Rajagopal Sastri and D. Gupta, for the respondent.
\n1961.  January 3. The Judgment of the Court was delivered by
\nHIDAYATULLAH,  J. This judgment governs\t the  disposal\tof
\nCivil Appeals Nos. 134 to 137 of 1959.\tThey have been filed
\nby  four  assessees  with special leave, and  arise  out  of
\nsimilar facts, and it is not necessary to refer to more than
\none case to consider the point in question.
\nThe assessment year under consideration is 1952-53, and\t the
\nprevious  year, the Calendar year, 1951.  In that year,\t Mr.
\nTulsidas  Kilachand,  one  of the four\tappellants,  made  a
\ndeclaration  of\t trust in favour of his wife, a\t portion  of
\nwhich may be quoted here:\n<\/p>\n
\t      “……….. 1, Tulsidas Kilachand hereby\t de-
\n\t      clare   that  I  hold  244  shares  of   Kesar
\n\t      Corporation  Ltd. and 120 shares of  Kilachand
\n\t      Devchand\t&  Co., Ltd upon trust\tto  pay\t the
\n\t      income  thereof to my wife Vimla for a  period
\n\t      of  seven\t years from the date hereof  or\t her
\n\t      death  (whichever event may be earlier) and  I
\n\t      hereby  declare that this trust shall  not  be
\n\t      revocable.”\n<\/p><\/blockquote>\n
In the year of account, a sum of Rs. 30,404 was received  as
\ndividend income on those shares, and the assessee  contended
\nthat this income, after being grossed up, was not liable  to
\nbe  included  in  his total income, in\tview  of  the  third
\nproviso\t to s. 16(1)(c) of the Indian Income-tax  Act.\t The
\nIncome-tax  Officer  did  not accept  this  contention,\t and
\nthough the assessment order is not before us, we gather from
\nthe  statement of the case that the reason he gave was\tthat
\nthe income had accrued to or had arisen in the hands of
\n353<\/span>
\nMr. Tulsidas Kilachand and had been paid by him to his wife.
\nThe  Income-tax Officer held that the words of\tthe  proviso
\n“income\t arising to any person by virtue of a settlement  or
\ndisposition” did not apply to this income.
\nOn  appeal, the Appellate Assistant Commissioner  held\tthat
\nthe  case  was\tgoverned by s. 16(3)(b),  and  need  not  be
\nconsidered  under the third proviso. to s. 16(1)(c)  of\t the
\nAct.   It appears to have been conceded before him  that  if
\nthe former provision applied, the proviso would not save the
\nincome\tfrom  being assessed in the hands  of  Mr.  Tulsidas
\nKilachand.  The appeal was dismissed.\n<\/p>\n
In  the appeal before the Tribunal, Mr.\t Tulsidas  Kilachand
\nagain  relied  upon the third proviso to  s.  16(1)(c),\t and
\ncontended that the case was riot governed by s. 16(3)(b) and
\nthat  the  dividend  income could not  be  included  in\t his
\nassessment.   The Tribunal came to the conclusion  that\t the
\ncase  was  covered  either  by s.  16(3)(a)(iii)  or  by  s.
\n16(3)(b),   and\t that  the  income  from  the  shares\twas,
\ntherefore,  liable  to\tbe included in\tthe  income  of\t Mr.
\nTulsidas  Kilachand.   The  Tribunal,  however,\t raised\t and
\nreferred the following question under s. 66(1) of the Act to
\nthe High Court of Bombay:\n<\/p>\n
\t      “Whether on a true construction of the deed of
\n\t      declaration  of trust dated 5th March ,  1951,
\n\t      the  net dividend income of Rs. 30,404 on\t 120
\n\t      shares  of Kilachand Devchand & Co., Ltd.\t and
\n\t      244  shares  of Kesar  Corporation  Ltd.\theld
\n\t      under trust by the assessee for the benefit of
\n\t      his  wife was income liable to be included  in
\n\t      the total income of the assessee?\n<\/p><\/blockquote>\n
The High Court came to the conclusion that, though s.  16(1)(c)
\nwas not satisfied in view of the third proviso, s.     16(3)(b)
\nwas applicable to the case, and answered the question in the
\naffirmative.\n<\/p>\n
In  the\t appeal before us, the case for the  Department\t was
\nbased  both on s. 16(3)(a)(iii) and s. 16(3)(b),  while\t the
\nappellants  contended that this disposition fell within\t the
\nthird proviso to s. 16(1)(c).  The relevant provisions are:\n<\/p>\n
45<\/span>
\n354<\/span><\/p>\n
”  16.\tExemptions and exclusions in determining the   total
\nincome.-\n<\/p>\n
(1)  In\t    computing\t the\ttotal\t income\t   of\t  an
\nassessee…………………………………………….\n<\/p>\n
(c)  all  income  arising  to any  person  by  virtue  of  a
\nsettlement  or\tdisposition whether revocable  or  not,\t and
\nwhether\t effected  before or after the commencement  of\t the
\nIndian\tIncome-tax (Amendment) Act, 1939 (7 of\t1939),\tfrom
\nassets\tremaining the property of the settlor  or  disponer,
\nshall be deemed to be income of the settlor or disponer, and
\nall  income arising to any person by virtue of\ta  revocable
\ntransfer  of  assets  shall be deemed to be  income  of\t the
\ntransferor:\n<\/p>\n
Provided…………………………………………….
\nProvided further……………………………………..
\nProvided  further  that this clause shall not apply  to\t any
\nincome\tarising to any person by virtue of a  settlement  or
\ndisposition  which is not revocable for a  period  exceeding
\nsix  years  or during the lifetime of the  person  and\tfrom
\nwhich  income the settlor or disponer derives no  direct  or
\nindirect benefit but that the settlor shall be liable to  be
\nassessed on the said income as and when the power to  revoke
\narises to him.\n<\/p>\n
(2)……………………………………….(omitted)
\n(3)..In computing the total income of any individual for the
\npurpose of assessment, there shall be included–\n<\/p>\n
(a)  so much of the income of a wife or minor child of\tsuch
\nindividual as arises directly or indirectly-\n<\/p>\n
(i)………………………………………………\n<\/p>\n
(ii)……………………………………………..\n<\/p>\n
(iii) from assets transferred directly or indirectly to\t the
\nwife   by   the\t  husband  otherwise   than   for   adequate
\nconsideration  or  in connection with an agreement  to\tlive
\napart; or\n<\/p>\n
(b)..so\t much of the income of any person or association  of
\npersons as arises from assets transferred otherwise than for
\nadequate consideration to the person or
\n355<\/span>
\nassociation by such individual for the benefit of his
\nwife or a minor child or both.”\n<\/p>\n
The  object  of framing s. 16 can almost be taken  from\t the
\nobservations  of  Lord Macmillan in  Chamberlain  v.  Inland
\nRevenue Commissioners (1), where he stated as follows:
\n“This\tlegislation  …  (is)\tdesigned  to  overtake\t and
\ncircumvent  a growing tendency on the part of  taxpayers  to
\nendeavour  to  avoid  or reduce tax liability  by  means  of
\nsettlements.   Stated quite generally, the method  consisted
\nin  the disposal by the taxpayer of part of his property  in
\nsuch a way that the income should no longer be receivable by
\nhim, while at the same time he retained certain powers over,
\nor   interests\tin,  the  property  or\tits   income.\t The
\nlegislature’s  counter\twas to declare that  the  income  of
\nwhich  the taxpayer had thus sought to disembarrass  himself
\nshould, notwithstanding, be treated as still his income\t and
\ntaxed in his hands accordingly.”\n<\/p>\n
These\tobservations  apply  also  to  the   section   under
\nconsideration, and the Indian provision is enacted with\t the
\nsame intent and for the same purpose.  Section 16 thus\tlays
\ndown  certain exemptions and exclusions in  determining\t the
\ntotal  income  of an assessee.\tSome of the  provisions\t lay
\ndown  the conditions for inclusion of certain income,  while
\nothers\tlay  down  the conditions  for\texclusion  of  other
\nincome.\t  We are concerned with the income accruing in\tcase
\nof  settlements and the conditions under which income  of  a
\nwife is treated as the income of the settlor or disponer  or
\nas  the income of the husband.\tWe have to see if  the\tpro-
\nvisions for exclusion or inclusion apply to this case.
\nSection 16(1)(c) provides that income from assets  remaining
\nthe  property of the settlor or disponer or arising  to\t any
\nperson by virtue of a revocable transfer of assets shall  be
\ndeemed\tto  be the income of the transferor.  What  cl.\t (c)
\nmeans  was decided by this Court in Provat Kumar  Mitter  v.
\nCommissioner of Income-tax<\/a> (2).\t There, Provat Kumar  Mitter
\nhad assigned the dividends only, and had not transferred the
\nrelevant shares.  It was held by this Court that this
\n(1) (1943) 25 T. C. 317, 329.\n<\/p>\n
(2) [1960] 3 S.C.R. 37.\n<\/p>\n
356<\/span><\/p>\n
was  a\tcase  of application of one’s  own  income  and\t not
\nassignment of the source from which the income was  derived,
\nwhich alone saved the income from tax, subject, however,  to
\nprovisions  like  s.  16(1)(c) and s. 16(3).   The  deed  in
\nfavour\tof  the wife in that case gave only a right  to\t the
\ndividends, and not being a transfer of an existing  property
\nof the assessee, s. 16(1)(c) and the third proviso were\t not
\nattracted.   That case thus has no application to the  facts
\nof  the present case, where the disposition  is\t differently
\nmade.\n<\/p>\n
The  disposition here is for a period of seven years or\t the
\nlife  of  the  settle’ whichever is  shorter.\tDuring\tthat
\nperiod\tor the life of the settlee, Mr.\t Tulsidas  Kilachand
\nhas  bound  himself upon trust to pay the dividends  to\t his
\nwife  and  not to revoke the settlement.  The  intention  is
\nobviously  to put this case within the third proviso  to  s.
\n16(1)(c),  because  cl.\t (c) does not apply  to\t any  income
\narising to any other person provided the disponer derives no
\ndirect\tor indirect benefit, even though the  assets  remain
\nhis property.  If it were only a question of the application
\nof  the proviso, this disposition would be exempt.   But  by
\nthe  deed of trust, the settlor holds the shares  in  trust;
\nthe  shares  do\t not remain the\t property  of  the  settlor.
\nSection\t 16(1)(c)  has, therefore, no application,  and\t the
\nproviso is not attracted.\n<\/p>\n
The  section  goes on to deal with other situations  and  to
\nprovide\t for  them  specially.\t Sub-section  (3)   provides
\nspecially for assets transferred to the wife or minor child.
\nIncome\tfrom assets transferred to the wife is still  to  be
\nincluded  in  the total income of the husband,\t(a)  if\t the
\nassets\thave been transferred directly or indirectly to\t the
\nwife   by   the\t  husband  otherwise   than   for   adequate
\nconsideration  [vide sub-s. (3)(a)(iii)], or (b) so much  of
\nthe income of any person or association of persons as arises
\nfrom   assets  transferred  otherwise  than   for   adequate
\nconsideration\tto  the\t person\t or  association   by\tsuch
\nindividual for the benefit of his wife [vide sub-s. (3)(b)].
\nThe  first  question  is whether there can  be\tsaid  to  be
\ntransfer  of assets to the wife or to ‘any person’  for\t the
\nbenefit\t of the wife.  The second question is whether  there
\nwas adequate consideration for the transfer, if
\n357<\/span>
\nthere  was one The contention of the assessee is that  there
\nwas no transfer of any assets at all.  It is contended\tthat
\nthe  ownership\tof shares involves a bundle of\trights,\t and
\nthat  they are, generally speaking, (a) right to  vote,\t (b)
\nright  to  participate\tin the\tdistribution  of  assets  on
\ndissolution, and (c) right to participate in the profits, e.
\ng.,  dividends which might be Hi, .declared.  It is  pointed
\nout  that none of these rights was transferred to the  wife,
\nbecause transfer of assets connotes a creation of a right in
\nthe  assets  in praesenti.  It is urged that  there  was  no
\ntransfer  of assets either to the wife or to any person\t for
\nthe benefit of the wife but merely a creation of a trust  in
\nrespect of the shares, the dividends from which were payable
\nto  the wife, and that thus s. 16(3)(a)(iii) or s.  16(3)(b)
\nwas not applicable.  It is lastly contended that even if  it
\nbe held that there was such a transfer, it was for  adequate
\nconsideration, being for love and affection, which is a good
\nconsideration.\n<\/p>\n
The  contention\t that there was no transfer at all  in\tthis
\ncase  is not sound.  The shares were previously held by\t Mr.
\nTulsidas  Kilachand for himself.  After the  declaration  of
\ntrust  by  him, they were held by him not  in  his  personal
\ncapacity  but as a trustee.  No doubt, under ss. 5 and 6  of
\nthe  Indian  Trusts  Act if the declarer  of  the  trust  is
\nhimself\t the  trustee also, there is no need  that  he\tmust
\ntransfer  the  property to himself as trustee; but  the\t law
\nimplies\t that such a transfer has been made by him,  and  no
\novert  act except a declaration of trust is necessary.\t The
\ncapacity  of  the  declarer of trust  and  his\tcapacity  as
\ntrustee\t are different, and after the declaration of  trust,
\nhe  holds  the assets as a trustee.  Under the\tTransfer  of
\nProperty Act, there can be a transfer by a person to himself
\nor  to\thimself\t and  another person  or  persons.   In\t our
\nopinion, there was, in this case, a transfer by Mr. Tulsidas
\nKilachand  to  himself\tas a trustee, though  there  was  no
\nformal transfer.\n<\/p>\n
The  assessee  also  stresses  the  words  “any\t person\t  or
\nassociation  of persons” in s. 16(3)(b), and  contends\tthat
\nsuch a person must be other than the husband, who transfers.
\nThe word “any person” is wide
\n358<\/span>
\nenough to include the husband, when he transfers property to
\nhimself\t in another capacity.  The change of capacity  makes
\nhim answer the description “any person”.  This deed must  be
\nregarded as involving a\t      transfer\tby the husband to  a
\ntrustee, and even though the husband is the same individual,
\nin his capacity as a trustee he must be regarded as a person
\ndistinct       from  the  transferor.  In  our\topinion,  s.
\n16(3)(b) covers the case.\n<\/p>\n
It   remains   to  consider  whether  there   was   adequate
\nconsideration  for the transfer.  Reliance has\tbeen  placed
\nonly   upon  love  and\taffection.   The   words   “adequate
\nconsideration” denote Consideration other than mere love and
\naffection,  which, in the case of a wife, may  be  presumed.
\nWhen  the  law\tinsists\t that  there  should  be   “adequate
\nconsideration” and not good consideration”, it excludes mere
\nlove  and  affection.\tThey may be  good  consideration  to
\nsupport a contract; but adequate consideration to avoid\t tax
\nis quite a different thing.  To insist on the other  meaning
\nis really to say that consideration must only be looked for,
\nwhen love and affection cease to exist.\n<\/p>\n
In  our\t opinion, this case falls within the  special  rules
\nconcerning wife and minor child, laid down in s.  16(3)(b)
\nand not within the third proviso to s.\t16(1)(c).   It\tmust
\nthus be held that there was a transfer of the assets to\t the
\nhusband-trustee\t for  the benefit of the  wife,\t The  answer
\ngiven by the High Court was thus correct.\n<\/p>\n
The appeals fail, and are dismissed with costs.\t One hearing
\nfee.\n<\/p>\n
\t\t\t   Appeals dismissed.\n<\/p>\n
\t\t\t__________________
\n359<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tulsidas Kilachand vs The Commissioner Of … on 3 January, 1961 Equivalent citations: 1961 AIR 1023, 1961 SCR (3) 351 Author: Hidayatullah Bench: Hidayatullah, M. PETITIONER: TULSIDAS KILACHAND Vs. RESPONDENT: THE COMMISSIONER OF INCOME-TAX,BOMBAY CITY I.[And connected DATE OF JUDGMENT: 03\/01\/1961 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C. 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