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TMI Blog1965 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-55. During the accounting period relevant to the assessment year 1954-55, the assessee received from the P.S.N. Motors (Private) Ltd. Rs. 36,000 by way of salary, Rs. 7,161 by way of commission and Rs. 79 by way of sitting fees. The first question referred-on the motion of the Commissioner of Income-tax, Kerala---relates to these receipts and is worded as follows: " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the income from salary, commission and sitting fees obtained by Sri P. N. Krishna Iyer from Messrs. P. S. N. Motors (Private) Ltd., Trichur, represented his individual income and not the income of the Hindu undivided family of which he is the karta? " The P.S.N. Motors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement that Krishna Iyer became entitled to a salary of Rs. 3,000 per month and a commission of 15 per cent. of the net profits of the company. The agreement is not before us. Paragraph 12 of the statement of the case says : "On August 18, 1952, the agreement with Sri. P. N. Krishna Iyer was signed. His remuneration was fixed as an office allowance of Rs. 3,000 per mensem and a commission of 15 per cent. on the net profit. " It is not contended that the payment of Rs. 3,000 per month represents a payment by way of office allowance and not a payment by way of salary. The main matter for determination, as we see it, is the source of the Rs. 10,000 which Krishna Iyer paid for the hundred shares he took on the formation of the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in evaluating the nexus between the company and the Hindu undivided family. They are mentioned below : (1) On the very date on which the agreement was signed-August 18, 1952 ---the Hindu undivided family sold to the company buses and other items essential for the commencement of the business for which it was formed for a sum of Rs. 8,01,074.14 nP. No portion of the consideration was paid and there was not even a written agreement to pay interest on the amount. (2) About a month later, on September 28, 1952, the company passed the following special resolution : " That in consideration of the valuable services rendered by Sri P. N. Krishna lyer for the promotion of this company and the very large sacrifices he has made in agreeing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advantage as his own separate property, merely on the ground that in the process of gaining that advantage an element of personal service or skill or labour is involved. The character of the income has to be determined, taking into account the basic foundation from which it emanates. In all cases where the income is traceable to family property, it must partake of the joint family character, and it would not be open to the manager or any other member of the family to claim it as his own individual and separate income." In the light of what is stated above, we must answer the question in the negative and in favour of the department. We do so. The second question referred -on the motion of the assessee-reads as follows : " Whether the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 958, of the income of the Hindu undivided family was what is termed a protective assessment ; but that or the fact that the assessment of the income of Krishna Iyer as an individual has become final before the order of the Commissioner dated July 27, 1960, does not affect the question of jurisdiction. We take the view that there was ample jurisdiction for the revision under section 33B of the Act and answer the question in the affirmative and against the assessee. The questions referred are answered as above ; but, in the circumstances of the case, without any order as to costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be sent to the Appellate Tribunal as required by sub-section (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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