DURGA PROSAD MORE Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under s. 66(2) of the IT Act, 1922, at the instance of the assessee. The question that has been referred to us for our opinion is as follows : "Whether, in the facts and circumstances of the case, and on a proper interpretation of the deed of conveyance and the deed of settlement the Tribunal is right in holding that the house property being premises Nos. 46A and 46B, Wellesley Street, Calcutta, is not trust property ?"

(2.) THE facts may briefly be stated thus : In the course of the assessment proceedings for the asst. yrs. 1958-59 and 1959-60, the assessee claimed before the ITO that the income of the house property consisting of premises Nos. 46A and 46B, Wellesley Street, Calcutta, should be treated as income derived from trust property and hence should be taxed not in his hands as his individual income but as income derived by him as trustee from trust property. It appears that the assessee filed two returns-one in his own name, viz., Shri Durga Prosad More, declaring loss at Rs. 9,736 and the other in the name of Shri Durga Prosad More in the capacity of trustee to the estate of Smt. Benarasi Debi declaring total income at Rs. 34,380. It was stated by the representative of the assessee before the ITO that the said house property should not be taxed in the hands of the assessee as it was a trust property but should be taxed separately. In the deed of sale dt. 30th September, by which the aforesaid premises were purchased, the assessee has been described as a trustee, being a party thereto as of the fourth part. In the recitals we get the following assertions :

(3.) NEARLY after one year another deed known as the deed of settlement was executed by and between Smt. Benarasi and the assessee. The relevant portion of the recitals in the deed of settlement runs thus :