9911796707
TMI Blog1976 (12) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... though the statement of case refers to four assessment years, we are really concerned with the two years 1956-57 to 1957-58 only, the corresponding accounting periods being the years ended on 31st March, 1956, and 31st March, 1957, respectively. The assessee is one Mrs. Maltida Ferreira (nee Fonseca). On 21st March, 1923, the assessee's father settled certain properties in trust. The trustees were directed to collect all the rents and profits and to pay therefrom all the costs incidental to the collection thereof and to pay the net income to the settlor for and during his lifetime and up to his death. Clauses 5 and 6 of the deed of settlement in fact made provision for the two daughters the assessee and her sister, Cecilia. The Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the securities given under the said deed of mortgage was the Ferreira Mansion. Additional loans were also subsequently taken. Ultimately, on 18th July, 1953, the mortgagee released Ferreira Mansion from the mortgage in consideration of Dr. Ferreira giving other properties in substitution as security. On 19th July, 1953, Dr. Ferreira conveyed the said building to his two sons. It may be mentioned in passing that in respect of the loans taken, Dr. Ferreira had signed several promissory notes and similarly he had also executed various agreements with various parties for the purpose of having the said building constructed. The income from this property, Ferreira Mansion, was, without being assessed, in the hands of the assessee (i.e., Dr. Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 did not offend the rule against perpetuity and was accordingly valid. As the proceeding by way of originating summons came to be concluded by the decision of the court of appeal, a consent decree was taken in Suit No. 419 of 1954, which was a decree dated 11th April, 1960. A copy of the said consent decree has been annexed as annexure " M " to the statement of case submitted by the Tribunal. Thereafter, the Income-tax Officer concerned took the view that this consent decree had made it clear that the transfer of the properties including Ferreira Mansion was void and inoperative and the same had been cancelled and the breaches committed by the trustees had been condoned. Accordingly, he concluded that the property always belonged to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts order. After marshalling various pieces of evidence, mainly documentary, the Tribunal has observed: " Therefore, the entire evidence would lead only to one conclusion, viz., that the doctor was the owner of the property till it was declared as trust property by the consent decree dated 11th April, 1960 ". It went on to state that there was not a tittle of evidence to show that the trust was the owner of the property. According to the Tribunal, there was also nothing to indicate that Dr. Ferreira was a benamidar of the trust and that the findings of the departmental officers on this aspect of the matter were based on mere conjectures and on wrong premises based upon no materials. As far as the first contention of the assessee was concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal. Bearing in mind the several clauses of the consent terms, which need not be gone into in detail, the background of the litigation, the relationship of the contesting parties in the suit and the opinion expressed by the rribunal in paragraph 38 of its order that all these proceedings were bona fide, it appears to us that there was a compromise and not a declaration of a clear, patent and obvious legal position. In view of this compromise Dr. Ferreira agreed with his daughter and wife that what was his would thenceforth belong to and be deemed to be the property of the trust. Once that position is realised, it will have to be agreed that the effect of the settlement would be only prospective and not retrospective. In the result, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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