BEHARI LAL MANDAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a refernce under s. 63(I) of the Bengal Agrl. IT Act and a somewhat unusal reference in that the Tribunal themselves say that the finding, the correctness of which has been put in issue by the question referred, was based on no evidence. Mr. Sen, appearing for the Department, has, however, tried to support the finding, but, in my opinion, he has not succeeded and could not succeed.

(2.) THE assessee is one Behari Lal Mandal whose assessment for the asst. yr. 1949-50, relative to the accounting year I355 B. S., has given rise to the question referred. It appears that he has 9.63 acres of land standing in his on name. Besides those lands there are I5.43 acres standing in the name of his wife, Sm. Saraswati Dasi, and further ares standing in the name of his sons. With regard to the lands standing in the name of the sons, so question arises in the present reference.

(3.) THE Tribunal which have made the reference are slightly different in composition from the Tribunal which heard the Department's appeal. THE president and the accountant member remain the same, but the lawyer member who delivered the judgment of the Tribunal has since been succeeded by a new member. Since the Tribunal as now constituted have themselves realised that the finding recorded by their body in their appellate order was based on no evidence, it would be ungracious to be too critical of their appellate order. I may point out, however, that it is absolutely incomprehensible to me how the abandonment of the assessee's contention that the lands, standing in the name of his wife, really belonged to her would automatically attract the operation of s. 12 of the Act. THE contention initially put forward was that the lands did in fact belong to the wife, as the record showed. If that contention was abandoned, the effect would only be an admission that the lands did not belong to the wife. Strictly speaking it would not even automatically follow that the husbands was the owner of the lands, but having regard to the sphere of the controversy before the ITO, I would concede that the withdrawl of the initial claim would carry that implication. But the effect of the admission would be to make the husband the owner of the lands and if he was to be treated as the owner, it is impossible to see how s. 12 of the Act would be attracted automatically or otherwise. It may be convenient to remind ourselves what the terms of s. 12 are. So far as material, the section says that in computing the total agricultural income of any individual for the purpose of assessment, there shall be included so much of the total agricultural income of a wife of such individual as arises directly or indirectly "from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart. " We are not concerned in the present case with an agreement to live apart. It is, however, clear that in order that section may apply, it is essential that there should be a direct or indirect transfer of the assets, from which the income in question arose, to the wife by the husband. As the AAC pointed out, no documents relating to the lands, standing in the name of the wife, had been produced at all and certainly no document was produced to show, nor was it alleged by anyone, that the husband had transferred the lands to the wife. Assuming as I have assumed that the withdrawal of the contention that the lands really belonged to the wife involved an admission that they belonged to the husband, it does not follow that there had been aany transfer in favour of the wife In fact, if the lands were continuing to belong to the husband, it would rather follow that there had been no traansfer. Mr. Sen contended that if the husband had purchased the lands with his own money, but had them recorded in the name of the wife, that would amount to an indirect transfer of the lands within the contemplation of s. 12(a)(i). It has undoubtedly been held that if a husband supplies the consideration for the purchase of certain assets and then arranges to have the purchase made in the name of his wife, he transfers the assets. If not directly at least indirectly, by way of transferring the money to the wife with which ostensibly, but not really, she made the purchase. THEre is however, no finding in the present case, nor any evidence nor even suggestion that the husband had purchased the lands with his own money. Indeed, there is even no evidence that he acquired the lands by purchase at all; for all that one knows he might have got them as a gift from a third party or as I put in the course of argument, he might have got them by way of consideration for a compromise with certain other persons. It appears to me that the facts of the present case, as founded, do not furnish evidence for any of the elements of s. 12(a)(i) of the Act.