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TMI Blog1938 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appellants (and another) his executors. He directed them to pay his debts out of the income of his property, and to pay ₹ 10,000 out of the income of his property on the occasion of his Addya Shradh for expenses in connection therewith to the person entitled to perform the Shradh. He also directed his executors to pay out of the income of his property the costs of taking out probate of his will. After conferring out of income benefits on his second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after providing for the payment out of income gradually of divers sums to some persons, and certain annuities to others, he bequeathed all his remaining property, (in the events which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligations (which he termed charges ) were of different kinds. Some arose under the will of the testator's father; others consisted of the annuities payable under the testator's will and of the payments actually made during the year in respect of the sums thereby directed to be paid gradually . These charges he treated (being, as he thought, bound to do so by the decision in Raja Bejoy Singh Dudhuria v. Commissioner of Income Tax, Calcutta) as of such a nature that the moneys required to meet them could not be regarded as income of the appellants. But since the charges were payable out of the whole income whether taxable or not, he apportioned the charges between the taxable income and the agricultural income, allocating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e questions, but added an additional one on his own motion under Section 66(1). The questions so referred were as follows:- Question 1.-Whether or not in computing the chargeable 'income' the whole of the amount (Rs. 10,000) provided in the will of Akshoy Kumar Ghosh as payable 'out of income' on account of his 'sradh' should have been left out of calculation and not merely the actual amount paid in the year of assessment on account of the same (Rs. 5,537)? Supplementary Question.-Whether in computing the income chargeable to tax in this case, the Income Tax Officer should, on a proper application of the law, have excluded no part of the sum of ₹ 10,000? Question 2.-Whether or not the cost of obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument a point arose which must be dealt with in limine. It was suggested that the assessment should be treated as being not an assessment upon the executors in regard to the income of the executors, but an assessment upon the appellants as trustees (under Section 40 of the Act) for the residuary beneficiary Ajit Kumar Ghosh. In their Lordships' opinion this contention is not open to the appellants. The matter has all along proceeded and been argued by both sides upon the footing that the assessment was an assessment of executors' income. Their is no evidence that at the relevant date the estate had been cleared and was held by the appellants simply as trustees, indeed the indications are all the other way. It is true that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been based upon a misunderstanding by the appellants of the situation. Had they been in fact charged with any tax deducted at source they would have been entitled to credit for that amount; but in fact the whole of the sums in respect of interest on securities and dividends which were brought in as gross for the purpose of ascertaining the total income of the executors, was deducted for the purpose of fixing the income on which tax was to be charged. They have not been charged with any tax deducted at source. Their Lordships are of opinion that this appeal fails and should be dismissed. They will humbly advise his Majesty accordingly. The appellants must pay the costs of the appeal. Appeal dismissed. - - TaxTMI - TMITax - Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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