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"The question in regaerd to the applicability of sub-sec. (1) or (4) of sec. 21 has to be determinded with reference to the relevant valuation date. The WTO has to determine who are the beneficiaries in respect of the remainder on the relevant valuation date and whether their shares are indeterminate or unkown. It is not at all relevant whether the beneficiaries may change in subsequent year before the date of distribution, depending upon cintingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibilty that the beneficiaries may change by reason of subsequent event such as brith or death would not take the case out of the ambit of sub sec. (1) of sec. 21. The position has to be seen on the relevant on that date and if, on the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaers and on what determinate shares, sub-se. (1) of sec. 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to to exist of some new beneficiaries coming into being. From the above extract, it is cleaer that we have to look to the position as on the relevant valuation date to come to the conclusion whether the beneficiaries are known and their shaeres were determinate or not. It is also not relevant whether the beneficiary is changed in subsequent year before the date of distiribution on account of birth or death. Further we have to proceed on the assumption that the date of distribution is the relevant accounting year and to see whether the beneficiaries are known and their shares are ascertainable. It is only when it was not possible to say with certainty and befiniteness as to who are the beneficiaries and whether their shaeres ar determinate and specific, the case will be governed by sec. 21(4) equivalent to sec. 161(4) of the Income-tax Act. 1961. The Madras High Court in the case of CWT v. Trustees of the Estate of V. R. Chetty & Bros. [1979] 120 ITR 329 enunciated the same principle as laid down by the Supreme Court, viz, : "so long as it is possible to say that on the relevant date the beneficiaries are known and their shares are determinate, the possibilty that the beneficiaries may change by reason of sub-sequent events such as brith or death would not take the case out of sec. 21" equivalent to sec. 161(1) of the Income-tax Act, 1961. In that case, when the trust was made, there were two sons of the settlor and the beneficiaries included their sons that would be born to the settlor till the first son attained the age of 21. Ultimately three more sons were born till the first attained the age of 21 and all the 5 sons were held to be beneficiaries entitled to 1/5th each and even in such situation, application of sec. 21(1) of the Income-tax Act, 1961. As the facts stand on the respective respective accounting year, the beneficiaries are known and their shares are also determinate. Consequently, application of sec. 161(4) is not called for. In view of the specific share of income of the beneficiaries specificed in clause 2, it is not open to the trustees to vary the same at their discretion as opined by the ITO. This is a specific trust created by the settlor in favour of existing beneficiaries with a direction to the trusstees to distribute the income in specified fraction and the corpus of the trust fund equally and therefore, it is not a discretionary trust. Since the beneficiaries as on the relevant accounting year ending on 31-3- 84 are known and ascertainable and their shares are also determinate and ascertainalble and their shares are also determinate and ascertainalble, the trust is to be assessed not at maximum marginal rate in terms of sec.. 161(4) as opined by the ITO. On the other hand, the trustee is to be assessed in a representative capacity u/s 161(1) of the Income-tax Act, 1961 as held by the Tribunal in the case of Trustees of Anilkuumar Trust (supra). Another point which was relied upon by the ITO to apply provisions of sec. 164 relate to female beneficiary viz. Miss Sarika Chordiya Clause (4. a) of the trust deed provides, upon the date of her marriage before the date of distribution, she will cease to be the trust. But the same clause provides that in the event of marriage, the amount lying to the credit of such beneficiary and the the proportionate share of the trust fund along with the accumulted income should be handed over by the trustees to the female beneficiary at the time of her marriage or the amount might be applied for the purpost of her marriage. In other words, either the amount should be given as dowry or marriage expenses shluld be met by the trustees of the female beneficiary. As on marriage she ceased to be the member of family as per the custom of Hidus, the benefit of the trust is not extended to her after marriage. This does not mean that female beneficiary became disentitled to the trust fund because portion of the trust fund due to her is paid to her on the date of marriage. In any case, this is the condition preecribed by the settlor over which there could be no grievance for any body elso. In view of the authorities of the Supreme Court and Madras High Court cited (supra), the CIT (A) was not correct in observing that clause (4. b) provides, for person who are not presently alive nor in existence i.e. unborn children and threby coming to the conclusion that the trust is not valid, because there is ambiguity and therefore it is void. The ITO as well as the CIT (A) were not justified in coming to the conclusion that because the trust is void or not vaild, the entire income of the trust is assessable in the hands of the settlor because the trust is a specific trust and vaild trust in terms of the legal authority cited and therefore they are not justified in concluding that the entire income is be assessed in the hands of the settlor. Since the position of the beneficiaries and their shares is to be ascrtained only as on the last date of the financial year, viz 31-3-84 and if it is done so, there is no question of the beneficiaries being indeterminate or the shares being in determinate or unknows. On the contrary, the beneficiaries are known and determinate and their shares also are known and determinate. Since this is a specfic trust, provisions of sec. 161(1) applies in view of the decision of the Supreme Court and Madras High Court cited (supra). Consequently, we reverse the order of the CIT (A) and direct the ITO to assess the income substantively u/s 161(1) and not protectively u/s 161(4) of the Income-tax Act, 1961.