9911796707
TMI Blog1996 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... are 1971-72, 1972-73 and 1973-74. Part of its income was held to be specifically receivable on behalf of or for the benefit of the beneficiaries whose share was determinate and known. The remaining income was assessed in the hands of the assessee in the status of an association of persons. The assessments were made by the Income-tax Officer and the tax was levied treating the income of an association of persons for the respective years. Subsequently, the Commissioner of Income-tax felt that the orders passed by the Income-tax Officer were erroneous and prejudicial to the interests of the Revenue inasmuch as on the assessee tax should have been levied for all the three years at the rate of 65 per cent. Hence, the Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative, the assessee also contended that if the above contention was not acceptable, then its case would be covered by clause (iii) of the proviso to section 164(1) of the Act. The Income-tax Appellate Tribunal did not accept these contentions of the assessee and held that the document dated July 24, 1924, was not a will since the will takes effect from the date of the death of the testator and is revocable by him in his lifetime, whereas the deed dated July 24, 1924, clearly shows that it was intended to take effect immediately. By this deed, the settlor had endowed the properties mentioned in the schedule in favour of the deity and for the purpose of the carrying out of various objects. It was also held by the Tribunal that refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the trust had been created not only for the benefit of the relatives of the settlor but also for various other purposes, e.g., worship of the family deity and wages of the servants employed for the deity and for the maintenance of a homoeopathic dispensary and a fund for the maintenance of widows, orphans and students. Thus the trust had not been created exclusively for the relatives of the settlor. Shri Shambhoo Chopra, learned counsel for the assessee, urged before us that the document dated July 24, 1924, was a will and not a trust. He has relied on the decision of the Lahore High Court in Haji Abdul Razak v. S. Ali Bakhsh, AIR 1946 Lahore 200, where it was held that one part of the instrument can operate in praesenti time as a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a trust can be created by a will. We do not disagree with this proposition, but, as already stated above, a will comes into operation on the death of the testator and not in praesenti. The document dated July 24, 1924, came into effect on the date of its execution and hence it cannot be called a will by any stretch of imagination. This document itself repeatedly uses the word " trustee " which also goes to indicate that it is a trust for various purposes mentioned in paragraph 7 of the said deed. In fact it was not necessary for us to go in detail into the submission of Shri Chopra because it has already been held by this court in its decision in the assessee's own case Chintamani Ghosh Trust v. CWT [1981] 80 ITR 331, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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