9911796707
TMI Blog1974 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act, 1961 ? " The relevant facts may now be briefly stated. The assessee in this case is Shri O. N. Mohindroo, an Advocate of Delhi, and the assessment year under reference is the year 1962-63, the relevant previous year being the financial year 1961-62. In the return of income filed for this assessment year, the assessee disclosed an income of Rs. 6,991 as income from his profession as an advocate. He did not disclose any income either under the head " Business " or under the head " Income from property ". In the earlier assessment years, income from a shoe business run under the name of " A to Z " Shoe Stores had been assessed in the hands of the assessee, although the assessee had claimed that this business belonged to his wife. Following the earlier assessments, the Income-tax Officer included the income from this business also in the assessee's income. The Income-tax Officer also found that a house property bearing No. 1710-11, Partap Street, Chuna Mandi, Paharganj, Delhi, had been purchased in the name of the assessee's wife for Rs. 20,000. The Income-tax Officer called upon the assessee to disclose the source of the purchase price of the house. The assessee exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee himself and not to his wife. It is on the basis of this finding that the Tribunal has given the further finding that the amount of Rs 12,000 was paid to the assessee's wife by her father by way of consideration for the assessee agreeing to discontinue the use of the name of Baluja for his shoe business. The contention of the assessee is that even on the basis that the shoe business belonged to him, there was no justification for the finding of the Tribunal that consideration for the amount of Rs. 12,000 proceeded from the assessee or that the title to this amount vested with the assessee. It is the assessee's contention that this finding is not supported by the evidence placed before the Tribunal. The finding of the Tribunal is in the nature of a finding of fact and it is well settled that this court is bound by such findings and cannot interfere with them except under special circumstances. These special circumstances have been explained by the Supreme Court in a number of cases, the latest being the case of Commissioner of Income-tax v. S. P. Jain , in which the earlier cases have been considered and the position has been re-stated in the following terms : In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use or minor child. If the transfer is not genuine and the spouse or minor child is only a nominee or benamidar of the transferor, apart from the provisions of this section, the income may be included in the transferor's total income under the general law. Similarly, if the transfer to the spouse or minor child is not valid, effective and complete, the income will continue to remain that of the intending transferor under the general law, and the provisions of this section could not apply. While the income from the property standing in the name of the assessee's wife has been included in the assessee's income under section 64(iii) of the Act, the Tribunal has examined the material placed before it from the standpoint of the property being purchased benami in the name of the assessee's wife. The Tribunal has referred to the fact that even after the purchase of the property, the rent was credited in the assessee's bank account and not in the account of the assessee's wife and further that the lease deed executed in favour of the tenant, Laxmi Commercial Bank, was in the assessee's name and further that the assessee had full enjoyment of the income from the property, because after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghter) was paid Rs. 12,000 in hard cash by me and my brothers so that she be helped financially and Shri Mohindroo then changed the name of his shop from 'Bulaja' Shoe Stores to 'A to Z ' Shoe Stores, which shop is still going on in the same name, of course, under the proprietorship of Shri Raj Kumari Mohindroo since Shri Mobindroo himself became an advocate at the end of 1954." The relevant portion of the affidavit of the assessee's wife which is annexure " A- 1 " to the statement of the case reads as follows : " That because of my father's love with me and desire to see me settled at Delhi, he, on my asking, had permitted the use of the word 'Baluja' in respect of Baluja Shoe Stores, Karol Bagh, Delhi. That in the year 1952-53 my father paid me Rs. 12,000 in cash for giving up the use of the word 'Baluja' and thereafter the name of Baluja Shoe Stores was changed to M/s. A to Z Shoe Stores." The assessee's wife was cross-examined by the Income-tax Officer and the following answer was elicited from her: This amount was given to me because earlier I have been allowed to used the word 'Baluja' to the shoe shop and his brother had objected that if to day you have allowed y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee's wife on the assessee's account or that it was intended by the assessee's father-in-law that this amount should be passed on to the assessee. This evidence, therefore, does not support the finding of the Tribunal that the consideration for this payment proceeded from the assessee or that the title to this amount vested in the assessee. Even if if is assumed that the consideration for the amount of Rs. 12,000 proceeded from the assessee in the sense that this amount was paid to his wife in consideration of his giving up the name of Baluja, even then the provisions of clause (iii) of section 64 of the Act are not attracted. This amount was not transferred directly or indirectly by the assessee to his wife. This amount was never intended to be paid to the assessee by his father-in-law and the payment by him to the assessee's wife cannot be construed to be an indirect transfer by the assessee to his wife. The payment of this amount was by way of a family arrangement by which a certain amount was paid to the assessee's wife and the assessee gave up the name of Baluja. It is only if the intention of the parties was that the amount of Rs. 12,000 was to be paid to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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