KESHARDEO CHAMRIA Vs. COMMISSIONER OF INCOME-TAX, BENGAL

JUDGEMENT

(1.) In this case the appellant appeals from a judgment of the High Court of Judicature at Fort William in Bengal on a reference to it by the respondent under S.66 (2), Income-tax Act, 1922. The question referred was framed thus : Whether in the circumstances described above the present assessee and Rai Bahadur Ramprotap Chamria were the managers of the properties appointed by or under any order of a Court within the meaning of S.41, Income-tax Act, and whether in the facts and circumstances given above the Income-tax Officer acted illegally in assessing the present assessee in respect of his share of the property.

(2.) The relevant facts and circumstances, which appear in the statement of case, must be stated. In the year 1929 the appellant instituted a suit in the High Court at Calcutta (No. 183 of 1929) against one Ramprotap, and a minor grandson of Ramprotap, alleging that he was the adopted son of Ramprotap's deceased brother Amloke Chand. By way of relief he claimed declarations that he was the son of Amloke Chand, and that he was entitled jointly with Ramprotap to certain properties specified in a schedule attached to his plaint. He also asked for an enquiry as to what other properties were joint and for partition. On 23 May 1930 a consent decree was made in the suit. The decree recited that the terms of settlement set forth in the schedule thereto had been agreed to by the adult parties and the guardian ad litem of the infant defendant, and that the Court was of opinion that it would be for the benefit of the infant defendant that the decree should be made. The operative portion of the decree, so far as relevant, ran thus :

(3.) It is declared with the consent of the adult parties and the guardian ad litem of the infant defendant by their respective counsel that the said terms ought to be carried out and the same are ordered and decreed accordingly and it is further declared with the like consent that the plaintiff is entitled to one equal half part or share of the residue of the joint estate mentioned in the said terms after setting apart the sum of rupees eleven lacs for allotment to the said Rai Bahadur Ramprotap Chamria in terms of Cl.2 of the said terms and also setting apart premises No.178, Harrison Road, and No.71, Cross Street, in terms of Cl.4 of the said terms (the same into two equal parts or shares being considered as divided and hereinafter referred to as the said properties) and that the defendant Rai Bahadur Ramprotap Chamria is entitled to the remaining equal half part or share thereof. And it is further ordered and decreed with the like consent that a partition be made of the said properties with the appurtenances into two equal parts or shares and that a commission do issue directed to Rai Bahadur Badridas Goenka and Radhakissen Chamria both named in the said terms for the purposes also mentioned therein and it is further ordered and decreed with the like consent that the said Commissioners do take an account subject to the conditions mentioned in the said terms of the joint properties (including the loss and profits of the business carried on by Rai Bahadur Ramprotap Chamria) and submit a separate report along with the return hereinafter mentioned and make a division of the said properties into two equal parts or shares and as regards the immovable properties make the same by metes and bounds where they shall see occasion with power to them to award compensation in money by way of equalizing the said partition and all deeds and writings relating to the said properties in the custody or power of any of the parties are to be produced before the said Commissioners upon oath or solemn affirmation as the said Commissioners shall direct. And it is further ordered and decreed with the like consent that the said Commissioners be at liberty to examine witnesses upon oath or solemn affirmation and do take the depositions in writing and return the same with the said Commission. And it is further ordered and decreed with the like consent that the said Commissioners do allot one equal half part or share of the said properties to the plaintiff to be held and enjoyed by him in severalty and the remaining one equal half part or share thereof to the said defendant Rai Bahadur Ramprotap Chamria to be held and enjoyed by him in severalty.