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" (1) The sum of Rs. 500 (rupees five hundred) per month to the settlor's said wife, Smt. Surama Sundari Roy, during her life without any abatement, deduction or diminution, for and towards the maintenance of herself and that of Smt. Sabita Rani Roy alias Lakshmi until the marriage of the said daughter PROVIDED HOWEVER that if the said Srimati Surama Sundari Roy dies before the marriage of Sabita Rani Roy, then and in that event the succeeding trustees shall pay Rs. 200 (rupees two hundred) only for and towards the maintenance, education and other expenses of the said Sabita Rani Roy alias Lakshmi until her marriage, (2) That the succeeding trustees shall hold and set apart the balance of all such net rents, issues and profits with liberty to them to invest the same or portion thereof in approved securities and/or in immovable properties including lease-hold properties and shall apply the same or portion thereof together with all monies which may become available at the time and represent accretions and accumulation of the trust estate, towards the expenses of the marriage of each of the settlor's two sons and beneficiaries, viz., the said Barun Kumar Roy and Basudev Kumar Roy. respectively, a sum of Rs. 8,000 (rupees eight thousand only) on each marriage and shall similarly apply and spend for and towards the expenses of marriage of the said Smt. Sabita Rani Roy alias Lakshmi, the minor daughter of the settlor, and also a beneficiary the sum of Rs. 15,000 (rupees fifteen thousand only), if for any reason such marriages do not or, any of them does not take place during the lifetime of the first trustee and sole beneficiary for life.

3. During his lifetime, however, the settlor appointed himself as the sole beneficiary. After his death on the 6th of January, 1959, the question arose how the assessment should be made on the trustees. In the trust deed referred to hereinbefore it was provided that after the demise of the settlor his wife, Smt. Surama Sundafi Roy, and his three sons, Sri Arun Kumar Roy, Sri Barun Kumar Roy and Sri Basudev Roy, would become the joint trustees in respect of the properties settled. The Income-tax Officer found that the trust deed did not provide for any definite share of the beneficiaries and, as such, he taxed the net income of the trust estate at the maximum rate under Section 23(3) read with Section 41 of the Indian Income-tax Act, 1922.

6. In respect of the assessment years 1959-60, 1960-61, 1961-62 and 1962-63, the Tribunal had referred to this court in I.T. Ref. No. 86 of 1966 the question whether on the construction of the deed of settlement Ihe Tribunal was right in holding that the monthly allowance which was payable to the settlor's wife should be separately assessed in the hands of the trustees as an amount specifically receivable by her under Section 41 of the Indian Income-tax Act, 1922, and should, therefore, be deducted from the total income receivable by the trustees from the trust estate. This aforesaid reference came up for hearing before this court and by a judgment delivered on 5th October, 1972, we expressed the opinion that the Tribunal was right in its conclusion in the aforesaid case and that the monthly allowance which was payable to the settlor's wife was an amount specifically receivable by her under Section 41(1) of the Indian Income-tax Act, 1922. In the instant case, we are concerned mainly with the amounts other than the amount mentioned before, that is to say, the monthly allowance payable to the settlor's wife. We have referred to the trust deed from wherein it would appear that after payment of the sum of Rs. 500 as monthly allowance under Clause (1) the trust deed in succeeding clauses provided for the expenses for marriage of each of the settlor's two sons and beneficiaries, namely, Barun Kumar Roy and Basudev Roy, respectively, a sum of Rs. 8,000 each and also for the marriage expenses of Smt. Sabita Rani Roy, the daughter of the settlor, a sum of Rs. 15,000. Thereafter, it provided for the ultimate distribution of the accumulated income of the trust after payment of the aforesaid dues and after payment of the rents, issues and profits of the said trust to the sons in the shares indicated in the said trust deed. The question is whether the proviso should apply to the income other than the monthly income payable to the settlor's wife in the hands of the trustees and whether the aforesaid income should be assessed at the maximum rate.