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TMI Blog1939 (1) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the fact that such cost had been stated in the partition deed as ₹ 29,22,050 and the share of the assessee in the assets of the Hindu undivided family had been made up on the footing of such valuation ? 2. As to question 1, the circumstances are that the assessee (who inter alia, is a money-lender) had a branch outside British India. He was communicated with by post by a person whom we will call A. A requested a loan. The loan was granted. It took the form of a negotiable hundi sent by post and capable of being converted into cash in Calcutta where A resided. It is suggested that when that hundi was sent from without British India into British India it amounted to a receiving in or a bringing into British India of profits or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the last case (and in Dunlop v. Higgins) the matter was also put on the usage of trade. See loc. cit. p. 35. Even on the view taken in the last cited case by Kay, L.J., who sought to restrict the effect of Dunlop v. Higgins, this would be a case where the hundi (i.e., the profits or gains ) was handed to the Post Office outside British India as an agent of A to carry to A. 5. The second question arises out of these circumstances. A joint Hindu family possessed items of property X and Y. We are concerned with X. The members we will call A and B. A and B decide to separate. They divided Y into two equal parts. X (which is a ginning factory - a going concern comprising very numerous items) cannot conveniently be divided, so A and B resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was a fair and proper bid representing the value A put upon X and was willing to acquire X for. 9. At first sight that appears to be the original cost of X to A. But it will be seen that A is bidding for a property that, as to half, was already his. Had his bed been ₹ 20 the result would be that he gets X and ₹ 10 (X what fall to his share and ₹ 10 half the sum bid). If his bid were ₹ 30 the result would be X plus ₹ 15. Thus an increase of ₹ 10 in the results in a cost of ₹ 5 to him. 10. Thus under no view could the cost to him on the facts here present, be more than ₹ 23,11,510 plus 1/2 (28,22,050-23,11,510). That fact alone makes us to answer the second question put in the negative. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore and Z. Z cost ₹ 1,000 but A (thinking that Z is valuable, e.g., believing it is diamondiferous) bids ₹ 21,000 for Z. B bids ₹ 10,000 for X and ₹ 10,000 for Y. Result B gets X and Y plus ₹ 10,000. A gets Z plus ₹ 10,500 plus ₹ 10,000. Net result (for the ₹ 21,000 and 10,000 and ₹ 10,000 bids do not result in the parting with any money) by gets X and Y and A gets Z. What has Z cost A ? ₹ 1,000 or ₹ 21,000 or some other figure ? What he has in fact given at one time or another (looking at his as a shareholder of half in a joint Hindu family) is 1/2 (10,000) for X, 1/2 (10,000) for Y, and 1/2 (1,000) for Z. In other words he has given for Z at one time or another money or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t least in the case of private auction) though at the time was at least equal to half; otherwise he would not have bid so much. 16. These observations arise out of the argument and are probably unnecessary for the purpose of answering the question put. That question is, in our opinion, to be answered in the negative. 17. Of course the matter is beyond doubt if the transaction is regarded as in any way tainted with fraud or lacking in bona fides : In re Bisseswarlal Brijlal (I.L.R. 57 Cal. 1336), but no fraud was alleged here. We do not think the present is in any way comparable with the case reported in 1938 Income-Tax Reports 733 (In the matter of Messrs. Chouthmal Gopalchand). Nor do we think that this falls within so-called doctrin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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