Madhya Pradesh High Court
Commissioner Of Wealth-Tax vs Maharaja Bahadur Singh Kasliwal And ... on 10 January, 1996
Equivalent citations: [1996]220ITR319(MP)
Author: S.B. Sakrikar
Bench: S.B. Sakrikar
JUDGMENT A.R. Tiwari, J.
1. At the instance of the Commissioner of Wealth-tax, Bhopal, vide Reference Applications Nos. 116 and 117/(Ind) of 1986, for the assessment years 1982-83 and 1983-84, Reference Applications Nos. 118 to 121/(Ind) of 1986 for the assessment years 1980-81 to 1983-84, Reference Applications Nos. 122 to 125/(Ind) of 1986 for the assessment years 1980-81 to 1983-84, Reference Applications Nos. 126 to 129/(Ind) of 1986 for the assessment years 1980-81 to 1983-84, Reference Applications Nos. 130 to 13S/(Ind) of 1986 for the assessment years 1980-81 to 1983-84 and Reference Application No. 201/(Ind) of 1982 for the assessment years 1969-70 to 1977-78, arising out of W. T. A. Nos. 23 and 24/(Ind) of 1985, W. T. A. Nos. 25 to 28/(Ind) of 1985, W. T. A. Nos. 11 to 14/(Ind) of 1985, W. T. A. Nos. 15 to 18/(Ind) of 1985, W. T. A. Nos. 19 to 22/(Ind) of 1985, and W. T. A. Nos. 172 to 180/(Ind) of 1981, respectively, all decided on July 17, 1985, July 16, 1986, and July 20, 1983, the Tribunal has referred the undernoted question of law for our opinion :
" Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the beneficiary interest of the assessee in two trusts--Lady Kanchan Bai Trust and Sir Hukumchand Trust belongs to the Hindu undivided family and not to the assessee ?"
2. The abovenoted assessees are beneficiaries in the two trusts bearing the names "Lady Kanchan Bai Trust and Sir Hukumchand Trust". The assessment years are 1980-81 to 1983-84. While framing the assessments under the Wealth-tax Act, 1957, the Wealth-tax Officer rejected the contention advanced on behalf of the assessees that the interest of the assessees in the aforesaid two trusts was assessable in the hands of the Hindu undivided family of which the assessee was a karta and not in the hands of the assessee in his individual capacity. On appeal, the Appellate Assistant Commissioner, following the decision of this court in Maharaja Bahadur Singh Kasliwal v. CIT (M. C. C. No. 240 of 1971), decided on February 6, 1974, held that the beneficial interest in the two trusts belonged to the Hindu undivided family and not to the assessee-individual. On further appeal by the Department, the Tribunal affirmed the finding of the Appellate Assistant Commissioner. After decision by the Tribunal, the aforesaid decision of this court was reversed by the Supreme Court in the case of CIT v. Maharaja Bahadur Singh [1986] 162 ITR 343, on the basis of which the Commissioner of Wealth-tax, Bhopal, filed the aforesaid reference applications and the Tribunal referred the aforesaid question of law for our opinion.
3. We have heard Shri D.D. Vyas, learned counsel for the applicant-Department and Shri P.M. Chaudhary, learned counsel for the non-applicant-assessee.
4. Shri Vyas submitted that in view of the decision rendered by the Supreme Court in (CIT v. Maharaja Bahadur Singh [1986] 162 ITR 343), reversing the decision of this court, the question, arising out of the order of the Tribunal based on the decision incinerated thereafter, merits to be answered in favour of the Department. Shri Chaudhary in oppugnation contended that-
(a) CIT v. Maharaja Bahadur Singh [1986] 162 ITR 343 (SC) is not applicable to the present cases because subsequent to the period of assessment years covered by this decision, the assessees' documented declaration dated October 19, 1964, to put their beneficial interests in the aforesaid two trusts into the hotchpot of the Hindu undivided family of their respective branches and to alter the character of the property in question.
(b) This declaration was not pressed before the Tribunal or lower authorities in view of the favourable decision of this court which held the field till then.
(c) The Tribunal had no occasion to consider CIT v. Maharaja Bahadur Singh [1986] 162 ITR 343 (SC) along with the declaration, permissible under Section 58 of the Trusts Act, dated October 19, 1964.
5. Shri Chaudhary in this backdrop urged that the Tribunal be directed to send a supplementary statement of the case as what is referred is not sufficient to record a complete and proper answer.
6. In the aforesaid decision, the Supreme Court luculently held that "The High Court and the Appellate Tribunal were right in holding that the subsequent declarations could be of no moment for deciding whether the income belonged to the individuals or their Hindu undivided families."
7. Faced with this situation, Shri Vyas in the alternative submitted that in case, it is felt that the contention of the assessees deserved to prevail, then the question, referred at the instance of the Department, may be left unanswered at this stage but with liberty to the Department to resort to Section 35 of the Wealth-tax Act for rectification of the orders on account of the later decision of the Supreme Court terminating the very base and basis of the same. He placed reliance on J.M. Bhatia, AAC v. J.M. Shah [1985] 156 ITR 474 (SC) ; CWT v. Ginni Devi Jalan [1990] 186 ITR 168 (Patna) and Parshuram Pottery Works Co. Ltd. v. D.R. Trivedi, WTO [1975] 100 ITR 651 (Guj). Shri Chaudhary contended that in the event of grant of such a liberty, the assessees be also granted freedom to press the point of declaration dated October 19, 1964, in an effort to secure the same order on that basis.
8. In our view, the supplementary statement is not the proper course because (i) no plea of declaration was raised before the Tribunal as is contended herein ; and (ii) the Tribunal had no occasion to consider the authenticity and impact of such a declaration. The question rests on "on the facts and in the circumstances of the case", but the aforesaid fact of declaration, as alleged, was not put forth and the Supreme Court decision was not available at the time of decision in the appeals by the Tribunal. It is, indeed, undesirable and improper to call for a supplementary statement without the existence of factual foundation. Statement of the case, in our view, is not sufficient to enable this court to determine the question because of the peculiar facts, features and factors.
9. At least three factors stare in the face-
(a) The Tribunal in its final order had no occasion to consider CIT v. Maharaja Bahadur Singh [1986] 162 ITR 343 (SC) and this decision was rendered on October 13, 1986, i.e., after the decision by the Tribunal on July 16, 1986.
(b) The question of declaration dated October 19, 1964, was not placed for consideration before the Tribunal or lower authorities. The assessees were sure of obtaining a favourable decision on the basis of the decision of this court which held the field till then. The Tribunal had thus, no occasion to apply its mind to the authenticity or impact of the alleged declaration dated October 19, 1964.
(c) Section 35 of the Wealth-tax Act, 1957, contains the provision for rectification.
10. It is trite law that cautious cognizance of subsequent events can be taken to make the right or remedy just and meaningful as also legally and factually in accord with current realities. That is the law laid down in Pasupuleti Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409, The situation presents no conundrum because of the indisputable position that orders, from which references are made, are rendered without consideration of the Supreme Court decision (as it is of subsequent date) and declaration (as it was not put forth).
11. Counsel for the assessees has prayed for a supplementary statement which is held to be inappropriate whereas counsel for the Department has urged, though in the alternative, for liberty to seek rectification thereby indicating intention to withdraw the prayer of reference at this stage for resorting to other remedy as noted.
12. In view of the aforesaid position and in the face of the prayer for liberty by the party at whose instance the references are made, we hold that we are not required to answer the question at this stage and find it fit to leave the parties to resort to the proper course under the law and to ask the Tribunal to act under Section 27(1) of the Act, if occasion so arose on the prayer of any party.
13. In the circumstances, we decline to answer the question at this stage and dispose of these applications in terms indicated below :
(a) The Department may apply under Section 35 of the Act for rectification on the ground of subsequent decision of the Supreme Court with proper prayer for condonation of delay on the basis of pendency of reference cases in this court and seek orders from the Tribunal.
(b) The assessees may, if so advised, put forth the plea of the alleged declaration dated October 19, 1964, on such applications of the Department in an effort to obtain the order that the beneficiary interest belonged to the Hindu undivided family and not to the assessee on the linchpin of such declaration at least.
(c) Discretion of the Tribunal is left unimpaired and unfettered. The unsuccessful party may, however, resort to Section 27(1) of the Act for reference of appropriate question or questions thereafter.
(d) The Tribunal may state the case and refer the question or questions if deemed referable. On rejection, the aggrieved party may have recourse to Section 27(3) of the Act. The present question, as noted above, shall be considered as surviving and available for such reference on request.
14. With these observations, made as a special case in the interests of justice to both the sides on their prayer, these reference applications stand disposed of with no orders as to costs. Counsel fee on e ither side is, however, fixed at Rs. 750, for each case, if certified.
15. Transmit a copy of this order to the Tribunal.
16. Retain this order in M. C. C. No. 222 of 1987 and place its copy each in the connected two cases.