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TMI Blog2011 (3) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... of holding that remuneration payable to Shebaits which is fixed by the founder of the Deed of Settlement does not amount to annual charge on the property and thus, no deduction under section 24 of the Act is permissible. 2. Being dissatisfied, the assessee has come up with the present appeal. 3. The facts giving rise to filing of this appeal may be summed up thus: (a) By a Will executed on 26-7-1921 one Sri Kali Das Paul, since deceased, created a Trust dedicating the properties mentioned in Schedule-'Ga' of the said Will in favour of Sree Sree Iswar Radhakishan Jew which is a regular assessee under the Act. (b) For the assessment year 1997-98, the appellant filed its return disclosing the total income amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case the ld. Tribunal ought to have held that the amount of remuneration paid to the trustees as fixed by the Hon'ble High Court constitute deductible expenditure from the income of the Trust as per provisions of section 24(1)(iv) of the Income-tax Act, 1961." 5. Mr. Khaitan, the learned senior Advocate appearing on behalf of the appellant, has strenuously contended before us that by the Deed of Arpannama, the settlor of the debutter property having fixed the remuneration of the Shebaits and such remuneration having been enhanced by this Court in a suit for administration of the Trust, the enhanced amount of remuneration payable to the Shebaits by virtue of the order passed by this Court should be deemed to be a charge on the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is subject to an annual charge, (not being a charge created by the assessee voluntarily or a capital charge), the amount of such charge;" 8. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we are of the view that even though by the Will by which the Debutter was created the settlor fixed remuneration of the Shebaits to be Rs. 100 in the year 1926, the enhanced remuneration fixed by Court in the year 1995 should be treated to be the remuneration payable to the Shebaits in accordance with law notwithstanding the fact that the said amount is higher than the one fixed by the settlor as the same was enhanced by virtue of a judicial order in a suit for administration. 9. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession to the rights of a female shebait. As regards the first, it is quite true that regarding the powers of alienation, a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir: Vide Angurbala v. Debabrata [1951] SCR l125 at p. l136." 12. Thus, a Shebait really acquires a heritable right over the property of the Debutter with some limitations unlike an ordinary owner of a property. The Shebait is authorized by law to collect the rent of the Debutter property and in such a situation, the Shebait first collects the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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