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16. In reply the learned counsel for the assessee contended that the argument of the learned D.R. virtually nullifies the retrospective operation of the provisions of section 40A(11), which came into operation from 1-4-1980. A plain reading of section 40A(11) will disclose that the unspent amount from out of the contributions made by the company to the assessee trust turns itself to be a debt owed by the assessee even from 1-4-1980. The later part of section 40A(11)(i) would only specifies the mode of repayment or re-transfer. In order to claim the amount as a deduction, it is enough to disclose the debt due and is not further necessary to disclose the actual payment of the debt. Incurring a debt is one and repayment of that debt is quite different. Simply because the payment of the debt is postponed to a later date, it cannot be said that the debt itself arose on the date of repayment. By virtue of non obstanate clause found in section 40A(11), even the irrevocability of the trust under which the assessee trust was created, no longer remains sacrosanct but becomes revocable at least as regards the liability to return back the unutilised amount of Rs. 14 lakh or Rs. 19 lakh, as the case may be, is concerned. When once the trust itself is revocable any sum repayable under such revocable trust should be considered to be the money of the transferor (in this case the donor) and no longer remains the money belonging to the transferee (in this case the assessee-trust).

17. The next question would be when the irrevocable transfer becomes a revocable transfer. The answer is simple. This is brought about by virtue of the retrospective operation of the provisions of section 40A(11), and therefore, the trust deed dated 20-2-1980 referred to above under which the assessee trust was created, no longer remains irrevocable trust on and from 1-4-1980 and the amount which is returnable viz., Rs. 14 lakh or Rs. 19 lakh as the case may be under the provisions of section 4(5) of the Wealth-tax Act becomes the amount returnable under the terms of revocable trust from 1-4-1980. In which case, they should be held to be belonging to the donor company. Correspondingly, the unutilised amount which is the same repayable to the donor with effect from 1-4-1980 becomes a liability or a 'debt' due from the assessee trust to the donor company while computing the net wealth of the assessee trust under section 2(m) of the Wealth-tax Act, the unutilised amount which is recoverable from the assessee trust from 1-4-1980 is deductible from the total value of the asset held by the assessee trust on the valuation dates subsequent to 1-4-1980.

18. After having considered the arguments on both the sides advanced before me, I find it easy to accept the arguments advanced on behalf of the assessee and consequently I hold that the learned J.M.'s ultimate conclusion that the unutilised amount in the hands of the assessee-trust from out of the contributions made by the donor becomes debt in the hands of the assessee-trust from 1-4-1980 itself under the provisions of section 40A(11), which are specifically held to be retrospective from 1-4-1980 is correct. The only point of difference as set out in the referred question is whether the retrospective operation to section 40A(11) with effect from 1-4-1980 affects the liability of the assessee-trust to wealth-tax. In my opinion, it does affect the wealth-tax liability of the assessee trust in the following manner. I have already extracted the sub-section (11) of section 40A in the above paras. Sub-section (11) clearly states about the right as well as liability. Firstly, I make it very clear that the word in the said sub-section "assessee" contextually means only the donor-company which had contributed the funds to the assessee-trust. When so under-stood, the sub-section reads that if the assessee (donor) has before 1st March, 1984 paid any sum to any trust, then notwithstanding anything contained in law or any instrument, he shall be entitled to claim the unutilised amount on each of the three valuation dates relevant to the three assessment years under consideration. Sub-section (11) contained an non obstante clause-"notwithstanding anything contained in any other law or in any instrument". Therefore, this abrogates any recital in the instrument. The Trust Deed dated 20-2-1980, is an instrument and no doubt in the recitals it is described as an irrevocable trust. Even though it is irrevocable, by virtue of the operation of the non obstante clause used in sub-section (11) it should be held to have become revocable from 1-4-1980 by virtue of retrospective operation of this sub-section. It means that whatever might have been written in the revocable trust deed, the donor company is entitled to recover the unutilised amount. Therefore, it is clear that at least as far as realisation of the unutilised amount is concerned, the trust deed becomes revocable trust and does not remain irrevocable.

19. The second limb of sub-section (11)(i) viz., "any claim is so made, the unutilised amount shall be repaid, as soon as may be, to him". Here again in my view the pronoun "him" again denotes to only the donor-company and these words cast an obligation on the assessee trust (the donee trust) to repay the unutilised amount to the donor company. It is true that the obligation to repay arises only when the claim is made and the repayment shall be made by the donee-trust "as soon as may be". Therefore, it is clear that the later part of the sub-section quoted above speaks about the liability to repay the unutilised amount and also deals with the time of such repayment. Now the question turns out whether an amount repayable under the revocable trust can be considered to be an asset belonging to the donee trust (assessee trust) from the date when the liability to repay arose viz., 1-4-1980. In this connection, the provisions of section 4(5) of the Wealth-tax Act is very relevant to be considered. As correctly argued section 4 is provided under the head "Net wealth to include certain assets" which states: "The value of any assets transferred under an irrevocable transfer shall be liable to be included in computing the net wealth of the transferor as and when the power to revoke arises to him". This provision would clearly show that from the date when the power to revoke arose to the donor the unutilised amount, which is repayable to it, should be considered to be part of its assets liable to wealth-tax under section 4(5) of the Wealth-tax Act. If unutilised amount should be regarded as part of the taxable assets held by the donor-company, correspondingly, it should form part of the debt due from the assessee-trust, since it is common knowledge that a single 'asset' cannot constitute wealth both in the hands of the donor as well as in the hands of the donee especially in the face of clear working of section 40A(11) in that regard. I have already examined this position in Tube Investments of India Ltd.'s case (supra) from which I have already quoted. Therefore, when the unutilised amount and the accretions thereon in the share, interest and dividends therefrom can be regarded only as an asset held by the donor-company and when the liability to repay the unutilised amount was cast on the assessee-trust (donee-trust), it is clear that the unutilised amount would become a liability or a debt payable by the donee-trust (or assessee-trust) to the donor-company. Therefore, when the unutilised amount of Rs. 19 lakh or Rs. 14 lakh as the case may be, can be considered only as an asset in the donor-company's hands from 1-4-1980. The said retrospective effect of the provisions of section 40A(11) will certainly affect the Wealth-tax liability of the assessee-trust (donee-trust) inasmuch as, the unutilised amount which otherwise would have been part of its assets from 1-4-1980, would become its liability since the said amount is liable to be returned to the donor-company. In view of this finding, the conclusions listed out by the learned A.M., in my humble opinion, are not correctly reached by applying the correct law or by appreciating the true or plain meaning of the provisions of section 40(11) of the Income-tax Act. The first conclusion that on the relevant dates, viz., 30-6-1982, 30-6-1983 and 30-6-1984, the assessee-trust was possessed of the funds as a matter of right in law and as a matter of fact cannot be accepted as correct. It may be holding possession of the funds but with an obligation attached to repay the same to the donor-company. When the Parliament states that this unutilised amount can be claimed as a matter of right by the donor-company, it is not very clear how it can be considered to be a contingent asset includible in the net wealth of the donee-trust. Further, it is not also comprehensible as to how the unutilised amount out of the contributed funds to the doneetrust can be termed as contingent liability which arose to the assessee after 1-4-1980. Another conclusion of the learned A.M. that section 40A(11) is only an enabling measure and does not automatically divest a trust of the funds handed over to it, is simply unacceptable and represents erroneous view of law or the meaning of section 40A(11). No discussion was there in the order of the learned A.M. in support of this conclusion. The difference as well as the discussion relation to Benami Transactions (Prohibition) Act, 1988, both by the learned Members, in my opinion, is not directly relevant for disposal of the case and the sixth conclusion of the learned A.M. that the legal fiction created under section 40A(11) has only a limited application and the fiction is not applicable to the facts and circumstances of the case is again, in my view, erroneous and does not stand on the anvil of correct legal scrutiny. Therefore, I agree with the conclusion reached by the learned Judicial Member and allow the amount of Rs. 19 lakh or Rs. 14 lakh, as the case may be, as the liability in the hands of the donee-trust for all the three assessment years under consideration.