{"id":244283,"date":"1995-04-28T00:00:00","date_gmt":"1995-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gosar-family-trust-jamnagar-etc-vs-commissioner-of-income-tax-on-28-april-1995"},"modified":"2019-04-05T10:01:59","modified_gmt":"2019-04-05T04:31:59","slug":"gosar-family-trust-jamnagar-etc-vs-commissioner-of-income-tax-on-28-april-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gosar-family-trust-jamnagar-etc-vs-commissioner-of-income-tax-on-28-april-1995","title":{"rendered":"Gosar Family Trust, Jamnagar Etc vs Commissioner Of Income Tax, … on 28 April, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gosar Family Trust, Jamnagar Etc vs Commissioner Of Income Tax, … on 28 April, 1995<\/div>\n
Equivalent citations: 1995 AIR 1644, \t\t 1995 SCC (4) 576<\/div>\n
Author: B Jeevan Reddy<\/div>\n
Bench: Jeevan Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nGOSAR FAMILY TRUST, JAMNAGAR ETC.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, RAJKOT ETC.\n\nDATE OF JUDGMENT28\/04\/1995\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nSEN, S.C. (J)\nNANAVATI G.T. (J)\n\nCITATION:\n 1995 AIR 1644\t\t  1995 SCC  (4) 576\n JT 1995 (4)   424\t  1995 SCALE  (3)538\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t  J U D G M E N T
\nB.P. JEEVAN REDDY.J.\n<\/p>\n
     Leave granted in Special Leave Petitions.\n<\/p>\n
     A common  question arises in this batch of appeals. For
\nthe sake  of convenience and with the consent of the counsel
\nfor the\t parties, we treat the facts in Civil Appeal No.1160
\nof 1991\t (Gosar Family Trust, Jamnagar) as representative of
\nthe facts  in all  the cases.  It is  agreed by\t the learned
\ncounsel for the appellants that the relevant recitals in the
\nTrust Deeds  concerned in all the appeals are identical. The
\nappeals arise  from the\t judgment and  orders of the Gujarat
\nHigh Court.\n<\/p>\n
     The High Court has answered the following two questions
\nreferred to  it, at  the  instance  of\tthe  Revenue,  under
\nSection 256(2)\tof the\tIncome Tax  Act\t in  favour  of\t the
\nRevenue and against the assessee:\n<\/p>\n
\t  “(1) Whether,\t in law\t and  on  facts\t and  having
\n     regard to\tthe provisions of sub-section (1) of section
\n     164 of  the Income\t tax  Act,  1961,  the\tassessee  is
\n     entitled to the concessional rate of tax?
\n     (2) Whether,  in law  and on  facts and  in view of the
\n     provisions of  the trust  deed,  the  trust  cannot  be
\n     subjected to maximum marginal rate of tax?”<\/p><\/blockquote>\n
     By a deed dated October 3, 1981, Sri Hirji Pethraj Shah
\ncreated a private trust known as “Gosar Family Trust”. S\/Sri
\nDevchand Shamji Shah, (2) Sri Deepak Devchand Shah, (3) Smt.
\nLadhiben Shamji\t Shah and  (4) Smt. Sunanda Rajesh Shah were
\nnamed as  trustees. The\t trust was  created with  a  sum  of
\nRupees five  hundred. Clause (7) of the Trust Deed, however,
\npermitted the trustees to accept from any person desirous of
\nmaking contributions  to the  Trust  fund  such\t amounts  or
\nproperties and\tupon such  terms and  conditions as they may
\nthink fit  subject, of\tcourse,\t that  the  objects  of\t the
\ncontributions are  not inconsistent  with the objects of the
\ntrust. There  are  two\tsets  of  beneficiaries.  The  first
\ncategory comprises  three individuals,\tviz., (1)  Sri Gosar
\nDevashi Jakharia,  (2) Smt. Lakhmaben Gosar Jakharia and (3)
\nSri Mukesh  Gosar Jakharia.  (Nos.2 and\t 3 are\twife and son
\nrespectively of\t No.1). The second category of beneficiaries
\nare: (1) Smo.Lakhmaben Gosar Jakharia, (2) family members of
\nSri Devchand  Shamji Shah  and (3)  Smt. Kankuben Gulabchand
\nShah upto  three generations. The recitals in the trust deed
\nare little unusual and may be noticed (as condensed by us):
\n(1) The\t life of  the trust is eighteen years. But after the
\nexpiry of  two years,  the trustees  have the  discretion to
\nterminate the trust at any time.\n<\/p>\n
(2) With  respect to  the income  from the trust properties,
\nthe trustees  have been\t given\tan  absolute  discretion  to
\ndistribute the\tsame among  the first category beneficiaries
\nin such\t manner and  in such proportion and at such times as
\nthey  think   appropriate.  The\t trustees  are\tvested\twith
\nabsolute discretion  not to distribute the income to any one
\nand to accumulate it.\n<\/p>\n
(3) At\tthe end\t of eighteen  years or\tat such\t time as the
\ntrustees put  an end  to the  trust, the corpus of the trust
\nand all\t income accumulated,  if any,  shall be\t distributed
\namong the  second  category  beneficiaries,  again  in\tsuch
\nproportion and in such manner as the trustees may decide.
\n(4) The trustees have been expressly empowered to invest the
\ntrust funds  in any  firm or  joint stock companies in which
\nany one\t or more  of the trustees may be partners, directors
\nor share-holders, as the case may be.\n<\/p>\n
     The trust\tis undoubtedly\ta discretionary\t trust.\t The
\nonly question  in this\tappeal is  whether the income of the
\ntrust taxed  in the  hands of  the trustees is chargeable at
\nthe maximum  marginal rate  or at the rate applicable to the
\nassociation of\tpersons within the meaning of Section 164(1)
\nof the\tIncome Tax Act. While the Tribunal has held that the
\nrate applicable\t is the\t rate relevant to the association of
\npersons by virtue of proviso (i) to Section 164(1), the High
\nCourt is of the opinion that proviso (i) is not attracted in
\nthis case  and, therefore,  the income\tis chargeable at the
\nmaximum marginal  rate. It  would  be  appropriate  to\tread
\nSection 164(1) insofar as it is relevant at this stage:\n<\/p>\n
\t  “Charge  of\ttax  where  share  of  beneficiaries
\n     unknown.\n<\/p><\/blockquote>\n
     164. (1)  Subject to the provisions of sub-sections (2)
\n     and (3),  where any  income in  respect  of  which\t the
\n     persons mentioned\tin clauses  (iii) and  (iv) of\tsub-
\n     section (1) of section 160 are liable as representative
\n     assessees or  any\tpart  thereof  is  not\tspecifically
\n     receivable on  behalf or  for the\tbenefit of  any\t one
\n     person or where the individual shares of the persons on
\n     whose behalf  or for  whose benefit such income or such
\n     part thereof is receivable are indeterminate or unknown
\n     (such income,  such part of the income and such persons
\n     being  hereafter\tin  this   section  referred  to  as
\n     “relevant\tincome”,   “part  of  relevant\tincome”\t and
\n     “beneficiaries”, respectively), tax shall be charged on
\n     the relevant  income or  part of relevant income at the
\n     maximum marginal rate:\n<\/p><\/blockquote>\n
     Provided that in a case where–\n<\/p><\/blockquote>\n
     (i) none  of the  beneficiaries has  any  other  income
\n     chargeable under  this Act exceeding the maximum amount
\n     not chargeable  to tax in the case of an association of
\n     persons  or   is  a   beneficiary\t under\t any   other
\n     trust………\n<\/p><\/blockquote>\n
     (Clauses (2), (3) and (4) omitted as unnecessary.)
\n     tax shall\tbe charged on the relevant income or part of
\n     relevant incomes  as if  it were the total income of an
\n     association of persons:<\/p><\/blockquote>\n
     (Rest of the section omitted as unnecessary.)
\n     The sub-section contemplates charging of tax at maximum
\nmarginal rate in two situations, viz., (a) where any income,
\nin respect  of\twhich  the  trustees  (omitting\t unnecessary
\ncategories  of\t persons)  are\tliable\tto  be\tassessed  as
\nrepresentative assessees,  is not specifically receivable on
\nbehalf or  for the  benefit of\tany one person and (b) where
\nthe individual\tshares of the persons on whose behalf or for
\nwhose benefit such income or such part thereof is receivable
\nare indeterminate  or unknown.\tThe first  proviso, however,
\nsays inter alia that where none of the beneficiaries has any
\nother income chargeable under this Act exceeding the maximum
\namount not  chargeable to  tax in the case of an association
\nof persons  or is  a beneficiary  under any other trust, tax
\nshall be  charged on  the relevant  income as if it were the
\ntotal income  of an  association of  persons. In  this case,
\nnone of\t the first category beneficiaries has taxable income
\nunder the  Act within  the meaning of proviso (1), while the
\nsecond category\t beneficiaries do  have\t such  income.\tThis
\nmeans that  if the  second category  beneficiaries are\talso
\ntreated as beneficiaries for the purpose of proviso (i), the
\ntrust income is liable to be charged at the maximum marginal
\nrate. If,  on  the  other  hand,  only\tthe  first  category
\nbeneficiaries are  treated as  beneficiaries  (and  not\t the
\nsecond category beneficiaries) within the meaning of proviso\n<\/p>\n
(i), then  the trust  income is\t liable to be charged in the
\nhands  of  the\ttrustees  at  the  rate\t applicable  to\t the
\nassociation of\tpersons. For  this  reason,  the  assessees’
\ncontention  has\t  been\tthat   only   the   first   category
\nbeneficiaries  are   beneficiaries  within  the\t meaning  of
\nproviso (i)  while the Revenue contends to the contrary. The
\nreasoning of the High Court on which it has held against the
\nassessee is to be found in the following three paragraph:\n<\/p>\n
     “There is no dispute about the fact that the income was
\n     not specifically  receivable on  behalf of\t or for\t the
\n     benefit of\t any one  person  and  that  the  individual
\n     shares of\tbeneficiaries were indeterminate or unknown.
\n     Therefore,\t the   provisions  of\tsection\t 164(1)\t are
\n     attracted to  the type  of arrangement  made under this
\n     trust.  The   argument  that  only\t the  first  set  of
\n     beneficiaries who\tmay receive the income are the class
\n     envisaged by sub-section (1) of section 164 and not the
\n     type of  beneficiaries who\t may,  ultimately,  get\t the
\n     accumulated income\t on distribution is not warranted by
\n     the wording  of the provision which includes the entire
\n     class of  beneficiaries on\t whose behalf  or for  whose
\n     benefit the income is receivable by the trustee.
\n\t  The trustees\treceive or  are entitled  to receive
\n     the income\t (under the  deed) on  behalf of  or for the
\n     benefit of both the sets of beneficiaries and are their
\n     representative assessees under section 160 (1) (iv). It
\n     cannot be\tsaid that they do not receive the income for
\n     the  benefit   of\tthe   second  set   or\t “tier”\t  of
\n     beneficiaries (described  as corpus beneficiaries). The
\n     trustees are empowered to accumulate the income for the
\n     benefit  of   the\tsecond\tset  of\t beneficiaries\tand,
\n     therefore, they  receive or are entitled to receive the
\n     income on\tbehalf of  or for the benefit of such second
\n     set of beneficiaries also notwithstanding the existence
\n     of the  first set\tof beneficiaries  to whom  they\t may
\n     distribute the  income if\tthey so\t choose to  do.\t The
\n     existence of  the authority of the trustees to disburse
\n     the income\t they receive  under the  trust to the first
\n     set of  beneficiaries does\t not militate  against their
\n     entitlement to  receive the  income on behalf of or for
\n     the  benefit  of  the  other  set\tfor  whom  they\t can
\n     legitimately accumulate  it for  eventual distribution.
\n     The trustees  were entitled to receive the income under
\n     this trust\t on behalf  of or  for the  benefit  of\t the
\n     entire class  of beneficiaries notwithstanding the fact
\n     that they had a discretion to bestow the benefit to one
\n     beneficiary or  one set of beneficiaries at the cost of
\n     the others.  The fact  that the  income so\t received is
\n     disbursed to some and not to others or is disbursed now
\n     or accumulated  for future\t disbursement should make no
\n     difference and  will  not\tchange\tthe  nature  of\t the
\n     arrangement made  under the  trust,  namely,  that\t the
\n     trustees receive  or are entitled to receive the income
\n     for the  benefit of or on behalf of the entire class of
\n     beneficiaries name in the trust.\n<\/p><\/blockquote>\n
\t  The fact  that the  trustees are  not\t obliged  to
\n     disburse the income or accumulate it for the benefit of
\n     the first set or the second set of beneficiaries or any
\n     of them  would  itself  indicate  that  the  income  is
\n     receivable by  the trustees  for  the  whole  class  of
\n     beneficiaries irrespective\t of the\t ultimate manner  in
\n     which the income is distributed.”<\/p><\/blockquote>\n
     The High Court further pointed out that for the purpose
\nof Section  164, it  is not necessary that the beneficiaries
\ndo actually  receive the  income. It is sufficient, it held,
\nthat the  income is  receivable\t by  the  trustees  for\t the
\nbenefit of  the persons\t named in  the trust. The High Court
\nobserved, “the real question is whether the persons named in
\nthe trust have an interest, whether vested or contingent, in
\nthe income  that is receivable on their behalf” and answered
\nthe  question\tby  saying   that  both\t the  categories  of
\nbeneficiaries mentioned\t in the\t trust deed have an interest
\nin the\ttrust and the income of the trust is received by the
\ntrustees on their behalf.\n<\/p>\n
     Sri Eradi,\t learned counsel for the assessees contended
\nthat the  second category  of beneficiaries cannot be called
\n“beneficiaries” with  respect to the income of trust for the
\nreason that  they are not entitled to any portion of income;
\nthey are  entitled  only  to  the  corpus.  Only  the  first
\ncategory beneficiaries\tare entitled  to the  income of\t the
\ntrust, it  is submitted.  When Section\t164 speaks of income
\nand it\tbeing taxed  at a  particular rate,  it is having in
\nmind the  particular year in which the income is received by
\nthe trustees  and is  being taxed  in their  hands.  Counsel
\nfurther submitted  that even  if the  trustees decide not to
\ndistribute the\tincome and  accumulate it,  it forms part of
\nthe corpus  which is  distributed among\t the second category
\nbeneficiaries at  the  end  of\teighteen  years\t or  earlier
\nwhenever the trust is put an end to by the trustees in their
\ndiscretion. Strong  reliance is\t placed upon the decision of
\nthe Bombay  High Court\tin Commissioner\t of  Income  Tax  v.
\nB.A.Sanghrajka\tTrust<\/a>\t(181  I.T.R.484)   where  construing
\nsimilar terms  of a  trust deed,  the Bombay High Court held
\nthat the  second category beneficiaries cannot be treated as
\nbeneficiaries within  the meaning  of provision\t (1). It  is
\nbrought to  our notice\tthat  the  said\t decision  has\tbeen
\nfollowed later\tby the\tsame High  Court in  Commissioner of
\nIncome Tax v. Mrs.Pushpaben Family Trust<\/a> (207 I.T.R. 5877.\n<\/p>\n
     We must say that the trust deed in question is rather a
\ncurious one. It is effective only for a limited period which
\ncan be\tas short  as two years. If, in case, the trustees do
\nnot choose to put an end to the trust, even then the maximum
\nlife of the trust is eighteen years only. One beneficiary is
\ncommon to  both\t the  first  and  second  categories,  viz.,
\nSmt.Lakhmaben Gosar  Jakharia. The  trustees are not obliged
\nto  disburse  or  distribute  the  income  among  the  first
\ncategory beneficiaries\tin the\tyear they  receive it.\tThey
\nneed not pay & single pie to any of the beneficiaries in the
\nfirst category at any time during the currency of the trust;
\nthey are  entitled to accumulate the whole income which will
\nthen pass  to the  second category beneficiaries as and when
\nthe trust  comes to  an\t end.  In  other  words,  the  first
\ncategory beneficiaries\thave no right to receive the income.
\nSo have\t the  second  category\tbeneficiaries  no  right  to
\nreceive any  income though they may ultimately get the whole
\nor part of the income along with the corpus on the expiry of
\nthe period  of trust. The trustees are expressly entitled to
\ndeposit the  monies of\tthe trust  fund in any firm or joint
\nstock company  in which\t any one  or  more  of\tthem  is\/are
\npartners\/directors\/share-holders,  which   means  that\t the
\ntrustees could\tas well\t have decided  not to  distribute  a
\nsingle pie and invest all the income and corpus fund for the
\nfull period  of\t eighteen  years  in  their  own  firms\t and
\nconcerns. No less surprising is the provision that the trust
\nstarted with  a mere  Rupees five  hundred and\tthe trustees
\nhave been  given absolute  discretion not only in the matter
\nof distribution\t of income  but also  in the  matter of very
\ncontinuance of\tthe trust.  At any  time after the expiry of
\ntwo years they can put an end to it if they so choose.\n<\/p>\n
     The ingenuity  of the  assessee and  the naivete of the
\ndepartment in  espousing  and  accepting  such\ta  trust  is
\nremarkable. Be\tthat as\t it  may,  we  have  to\t answer\t the
\nquestion, whether  the second category beneficiaries are not
\n“beneficiaries” within the meaning of proviso (i) to Section
\n164(1) on  the above facts? We are of the considered opinion
\nthat   the    second   category\t  beneficiaries\t  are\talso
\nbeneficiaries as  rightly pointed  out by the High Court. If
\nthe income  is not  distributed\t among\tthe  first  category
\nbeneficiaries, the  whole income – or such part of it as may
\nnot have been distributed among the first category – goes to
\nthe second  category. There  is no  reason why\tit cannot be
\nsaid that  the income  is received by the trustees on behalf
\nof both the categories of beneficiaries. Indeed, there is no
\ndistinction between  the two categories so far as the income
\nof the trust is concerned. The members of the first category
\ntoo have  no right  to demand or receive income. They may or
\nmay not receive any income. It may well happen that they may
\nnot get\t a single pie either in the year concerned or during
\nthe entire  period of the trust. If so, how it is being said
\nthat income  is being  received on  their behalf. The second
\ncategory beneficiaries\ttoo have  no right to the income but
\nyet they  may get  whole of it or such part of it as may not
\nhave been  distributed or  paid\t to  first  category.  Thus,
\nneither category  has a\t right but  only an  expectation  to
\nreceive\t income.  In  this  sense,  members  of\t the  second
\ncategory are  as much  beneficiaries as\t the members  of the
\nfirst category.\t The trustees  are entitled to choose not to
\npay a  pie out of the income to any one and invest the whole
\nof it  in their\t own  concerns.\t They  were  also  under  no
\nobligation to  disburse or distribute the income received in
\nan year\t in that  year or  in the  following year.  For\t the
\npurpose of  Section 164(i)  what is  relevant  is  that\t the
\nincome is  receivable on  behalf of the beneficiaries. It is
\nnot  necessary\t that  the   income  is\t  received  by\t the
\nbeneficiaries. It  is, therefore,  difficult to\t say in\t the
\nlight of  the recitals\tof the trust deed that the income is
\nreceivable only\t on behalf  of the first category but not on
\nbehalf of the second category beneficiaries. Indeed, Section
\n164(1)\tor  the\t proviso  (i)  thereto\tdoes  not  make\t any
\ndistinction between beneficiaries and beneficiaries – nor is
\nthe said expression defined in the Act. It would, therefore,
\nbe reasonable  to construe  and\t understand  the  expression
\n“beneficiaries” in  its ordinary  and  normal  sense,  which
\nmeans that  both  categories  are  beneficiaries.  Situation
\ncould probably\thave been  different if\t there had  been  an
\nobligation  upon  the  trustees\t to  distribute\t the  income
\nreceived in  an year  in that  very year or in the following
\nyear(s) in  which event\t it could  probably be said that the
\ntrust income  is receivable  by the trustees on behalf of or
\nfor the benefit of the first category beneficiaries only. In
\nthis case,  there is  no such  obligation and the income not
\ndistributed ultimately\tgoes to\t the second  category. It is
\nimmaterial whether  that income\t becomes a part of corpus or
\nnot. What  is  material\t is  that  it  goes  to\t the  second
\ncategory. It  cannot, therefore,  be  said  that  income  is
\nreceived only  on behalf  of the  first category and not the
\nsecond category\t beneficiaries. Either\tcategory could\thave
\nreceived the  income wholly to the exclusion of the other or
\nboth could  have received  it partly in the manner explained
\nabove.\tWe   are,  therefore,\tunable\tto  agree  with\t the
\ncontentions urged  by the learned counsel for the assessees.
\nThe charging  of maximum  marginal rate\t was not contrary to
\nlaw.\n<\/p>\n
     Now, coming to the decision of the Bombay High Court in
\nSanghrajka Trust,  the High  Court has\tconstrued the  trust
\ndeed concerned\ttherein to  mean  that\tthe  daughter-in-law
\n(comparable to\tsecond category in our case) had no right or
\ninterest in  the income of the trust for any year but it did
\nnot attach sufficient importance to the other recital in the
\ntrust  deed   that  the\t trustees  were\t entitled  in  their
\ndiscretion not to disburse any income to the grand daughters
\n(comparable to first category in our case) of the settlor in
\nwhich  case  the  entire  income  would\t have  gone  to\t the
\ndaughter-in-law at the expiry of the trust. The daughter-in-
\nlaw may not have had a right to the income of the trust, but
\nso did\tthe grand  daughters too did have no right. The said
\ndecision,  therefore,\tcannot\tadvance\t  the  case  of\t the
\nappellants herein.\n<\/p>\n
     We must  say that\tthe policy  of law as disclosed from
\nSection 164(1)\tis to  discourage  discretionary  trusts  by
\ncharging the  income of such trusts in the hands of trustees
\nat the\tmaximum marginal  rate except  in certain  specified
\nsituations.  The   trust  deed\t concerned   herein   is   a
\ndiscretionary trust  of an  extremely unusual type. Since it
\nis stated that the Tribunal has found the trust deed to be a
\ngenuine one,  we do  not wish  to say  anything more on this
\nscore.\n<\/p>\n
     For  the  above  reasons,\tthe  appeals  fail  and\t are
\ndismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gosar Family Trust, Jamnagar Etc vs Commissioner Of Income Tax, … on 28 April, 1995 Equivalent citations: 1995 AIR 1644, 1995 SCC (4) 576 Author: B Jeevan Reddy Bench: Jeevan Reddy, B.P. (J) PETITIONER: GOSAR FAMILY TRUST, JAMNAGAR ETC. Vs. RESPONDENT: COMMISSIONER OF INCOME TAX, RAJKOT ETC. DATE OF JUDGMENT28\/04\/1995 BENCH: […]<\/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-244283","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGosar Family Trust, Jamnagar Etc vs Commissioner Of Income Tax, ... on 28 April, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gosar-family-trust-jamnagar-etc-vs-commissioner-of-income-tax-on-28-april-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gosar Family Trust, Jamnagar Etc vs Commissioner Of Income Tax, ... on 28 April, 1995 - 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