9911796707
TMI Blog1966 (12) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... , but by D. C. Shah and his wife, Anasuya Bai, in their individual capacity out of the cash presents received by them from various persons in connection with the marriage. The receipt of these presents from various persons and the items of expenditure in connection with the marriage met out of them were all recorded in separately maintained books of account referred to in the reference as marriage khata book, marriage khird book and memorandum books, etc. Analysing the figures on the basis of the said accounts the result is stated as follows : Devchand, that is, D. C. Shah received a total sum of Rs. 70,233 as presents, his wife, Anasuya Bai, received Rs. 30,778 and the daughter (bride), Snehalata, received Rs. 77,774. It is common ground and undisputed that amounts presented to Snehalata were retained by her. The expenditure in connection with the marriage was, therefore, met, according to D. C. Shah and his wife, Anasuya Bai, out of the cash presents received by them as stated above. The original assessing authority rejected that contention. He took the view that the presents were not, or cannot be said to have been, received by D. C. Shah and his wife, Anasuya Bai, in their in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case, the expenditure of Rs. 1,00,795 was properly treated as having been incurred by the Hindu undivided family? 3. In the event of question No. 2 being answered in favour of the assessee, whether the incurring of the expenditure by Shri D. C. Shah and Smt. Anasuya Bai could be assessed in the hands of the Hindu undivided family by reference to the provisions of section 4(i) of the Act ?" It appears to us that the first question was not a question which could have been properly made the subject of reference to the High Court under section 25 of the Expenditure-tax Act. It is a proposition of Hindu law and in ordinary circumstances would only have been a step in the course of the argument leading to the legality or otherwise of a certain decision taken as to the existence or not of the liability to tax. The probable reason for formulating a question of Hindu law as a distinct question for a reference under the Expenditure-tax Act appears to be the peculiar circumstances in this case in the Appellate Assistant Commissioner and the Tribunal taking different views on the question of the liability or obligation of the family or father in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, for the reasons we shall presently point out it is not possible to dissociate one question from the other. In paragraph 12 of the statement of the case, the. Tribunal has set out its findings. in the following terms :-- " After receipt of the remand report, the parties were heard again and in the final order passed by the Tribunal on August 1, 1964, the material findings of the Tribunal were as follows : 1. Having regard to the financial position and status of the family and in the absence of any impediment to the family spending on the marriage by way of any kind of objection from any member of the family, the family is under a legal liability to perform the marriage and the expenses have been incurred by the family even though for this purpose it utilised the gifts received. 2. As the marriage of an unmarried daughter is one of the liabilities and as such obligations of the Hindu undivided family and as such an obligation had been discharged by Shri D. C. Shah and Smt. Anasuya Bai, section 4(i) would apply and the amount of expenditure is liable to be included in the family's taxable expenditure." Both the findings are composite findings both of fact as well as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f account maintained in connection with the marriage and the absence of any such detailed account in other books of account which could be clearly and exclusively related to the joint family made it impossible to record any such finding. The Tribunal, therefore, had to content itself by expressing strong suspicions and stating that perhaps this entire process of receiving gifts and spending money out of them was what they called a facade. There is another reason why we must hold that the positive finding given by the Tribunal is that the expenditure in connection with the marriage was met out of the presents and not out of the joint family funds. It will be remembered that the original assessing authority had regarded the expenditure met out of the presents received by Anasuya Bai as expenditure covered or governed by sub-section (ii) of section 4 of the Expenditure-tax Act, according to which, expenditure incurred by a dependant of the family in the position of Anasuya Bai can be regarded as having been incurred by the family itself if the same had arisen out of assets directly or indirectly transferred by the family to the dependant. Dealing with this question, the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Parekh v. Commissioner of Expenditure-tax, that when a member of the undivided family spends for his own personal requirements out of the proceeds of his own separate property, such expenditure cannot be added to the assessable expenditure of the joint family. The same principle, in our opinion, should be applied to the case of expenditure incurred for the purpose of meeting a legal obligation. Now in the present case, as already pointed out by us, both the joint family as well as D. C. Shah and his wife, Anasuya Bai, were under an obligation to meet the expenses of Snehalata's marriage. When, therefore, either Shah or his wife, Anasuya Bai, incurred any portion of that expenditure such incurring should naturally be referred to their own personal obligation in that regard, and not necessarily to the obligation of the family. Of course, by evidence it might be shown that although there was their personal obligation to meet it, the expenditure was met in such a way as to be related to the obligation of the joint family. For example, a karta of the family who is in possession of both joint family funds as well as his own private funds may legitimately utilise the joint family fun ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
