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(c); and (3) It is a relevant consideration that, as found by the authorities, the settlor has been deriving direct and indirect benefits from the trust properties. He relies on clauses 4, 6, 8, 10, 11 and 21 of the Trust Deed to show that the Trust Deed gives the settlor right to re-assume power directly 9 Sup. CI/67-17 or indirectly over the income or assets of the Trust within the first proviso to s. 16(1)(c).

Let us now examine the Trust Deed. This indenture was made between Jayantilal Amratlal, hereinafter called the settlor, and Jayantilal Amratlal, Padmavati wife of the said Jayantilal Amratlal, Ramanlal Amratlal, Hariprasad Amratlal, Kasturlal Chandulal Parikh and Bhagubhai Chandulal, hereinafter called the Trustees. Clause, 1 vests the shares and the other trust properties and income in the trustees. Clause 2 gives the name of the trust Clause 3 obliges the trustees to get and collect income ,of the trust properties and pay expenses, etc. Clause 4 creates the trust for the relief of poor, and for education, medical relief, etc. It further provides : "The Trustees shall at the direction of the Settlor during, his lifetime and after his death at their discretion set aside any portion of the income of the Trust Premises to provide cash, food and clothes for any temple or temples of the Pushti Marg Sampradaya. In applying. the income of the Trust Premises for all or any of the objects hereinbefore specified the Trustees may consider the claims of any needy or poor person belonging to the Visa Porwad Community." Clause 5 enables the settlor to give direction to the trustees to accept contributions ,or donations to the Trust from other persons. Clause 6 provides as follows : "The Setflor may at any time or times by writing direct that any specific funds or investments or property forming part of the Trust Premises and/or the income thereof shall be utilised and applied exclusively for any one more of the aforesaid ,charitable objects and the Settlor may by writing at any time or times vary or revoke any such directions previously given by him and Trustees shall be bound to carry into effect all such directions given by the Settlor." Clause 7 enables the Trustees to utilise the whole or any portion of the Trust Premises for all or any of the charitable object-,,, if the Settlor so directs. Clause 8 may be set out in full :

The learned counsel for the appellant says that these clauses read fairly would enable the Settlor to direct the Trustees to give a loan to him and he could give directions to the Trustees in 'such a way as to re-assume control over the assets. He says that as a matter of fact the Income-tax Officer did find that the Settlor has been utilising these powers for his own benefit. There is no doubt that under the Trust Deed the Settlor has very wide powers and the Settlor could direct the Trustees to grant loan to him. The Trustees could even grant loan to a firm in which be was interested. But this would be contrary to the provisions of the Bombay Public Trust Act. Section 35 (I) of the Bombay Public Trust Act provides :

The Calcutta High Court in Commissioner of Income-tax, West Bengal v. Sir S. M. Bose(1) observed "The first proviso to Section 16(1)(c) only contemplates cases where the settlor can lawfully reassume power over the income or the assets. Unless that was so, the proviso would cover every trust where a settlor has made himself trustee because a trustee acting dis- honestly could always assume control over the income."

We agree with these observations. Similarly, in an unreported judgment (Commissioner of Income-tax, Bombay North v. Mathuradas Mangaldas Parekh ( 2 ) the Bombay High Court repelled a similar argument by observing :

Viscount Simonds observed again in Saunders v. Commissioners of Inland Revenue(1) in construing a similar provision occurring in the English Act :

"I am assuredly not going to depart from the fair meaning of words in a taxing Section in order that tax may be exacted."

What then is the fair meaning of s. 16(1)(c) proviso.1 ? It seems to us that the words "reassume power' give indication to the correct meaning of the proviso. The latter part of the proviso contemplated that the settlor should be- able by virtue of something contained in the Trust Deed, to take back the power he had over the assets or income previous to the execution of the Trust Deed. A provision enabling the settlor to give directions -to trustees to employ the assets or funds of the trust in a particular manner or for a particular charitable object contemplated by the trust cannot be said to confer a right to reassume power within the first proviso. Otherwise a settlor could never name himself a sole trustee. It seems to us that the latter part of the proviso contemplates a provision which would enable the settlor (1) 31 T. C. 141, 169.