Shreya Somany Trust, Kolkata V. ITO, Ward 36(2), Kolkata

ITA 120/KOL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54652 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-10-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: D S DAMLE
• Keywords: Gift
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE . . , ! '# '# '# '# /AND ' $# , ! ) [BEFORE SHRI S. V. MEHROTRA, AM & SRI MAHAVIR SINGH , JM] #% #% #% #% / I.T.A NO. 120/KOL/2009 $&' '() $&' '() $&' '() $&' '()/ // / ASSESSMENT YEAR: 2005-06 SHREYA SOMANY TRUST VS. INCOME-TAX OFFICER, WD -36(2), KOLKATA(PAN:AACTS 6585 N) (+, /APPELLANT ) (-.+,/ RESPONDENT ) DATE OF HEARING: 28.11.2011 DATE OF PRONOUNCEMENT: 02.12.2011 FOR THE APPELLANT: SHRI D. S. DAMLE FOR THE RESPONDENT: SHRI S. K. ROY / / ORDER PER MAHAVIR SINGH, JM ( ' $# ' $# ' $# ' $#, , , , ! ! ! ! ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XX, KOLKATA IN APPEAL NO.319/CIT(A)-XX/WD.36(2)/07-08/KOL DATED 04.12.200 8. ASSESSMENT WAS FRAMED BY ITO, WARD-36(2), KOLKATA U/S.143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DA TED 20.09.2007. 2. THE ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN ASSESSING RS. 4 LAKH S AS INCOME OF THE ASSESSEE U/S. 56(2)(V) OF THE ACT. FOR WHICH, ASSESSEE HAS RAISED FOLLOWING THREE EFFECTIVE GROUNDS: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS UNJUSTIFIED IN LAW AND IN FACT IN UPHOLDING THE ASSESSMENT OF R S.4 LAKHS AS APPELLANTS INCOME ASSESSABLE U/S. 56(2(V) OF THE ACT. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE AUTHORITIES BELOW WERE UNJUSTIFIED IN NOT APPRECIATING THAT SINCE THE ASSE SSEE HAD RECEIVED THE IMPUGNED SUM OF RS. 4 LAKHS FROM C. K. SOMANY HUF OF WHICH SHE WAS A MEMBER THE AMOUNT RECEIVED COULD NOT BE ASSESSED AS INCOME U/S. 56(2)(V) OF TH E ACT. 3.FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW BE DIRECTED TO EXCLUDE FROM THE TOTAL INCOME, RS. 4 LA KHS WHICH THE APPELLANT RECEIVED FROM C. K. SOMANY HUF OF WHICH SHE WAS A MEMBER. ASSESSEE ALSO RAISED ADDITIONAL GROUNDS, WHICH ARE AS UNDER: 2 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 (1 FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE A.O. BE DIRECTED TO EXCLUDE SUM OF RS.4,00,000/- FROM THE TOTAL INCOME IN VIEW OF EXEMPTION PROVIDED U/S. 10(2) OF THE ACT. (2) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT HAVING RECEIVED THE AMOUNT FROM C. K. SOMANY HUF OF WHICH MS. SHR EYA SOMANY WAS MEMBER THE AMOUNT RECEIVED BE EXCLUDED FROM THE TOTAL INCOME . 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI D. S. DAMLE STATED THAT THE ABOVE ADDITIONAL GROUNDS RAISED BY ASSESSEE ARE PURELY LE GAL AND EMANATING OUT OF FACTS OF THIS CASE AND NO NEW FACTS ARE TO BE DISCOVERED AT THIS STAGE . HENCE, HE URGED THAT THESE SHOULD BE ADMITTED AND ADJUDICATED. ON THE OTHER HAND, LD. S R. D.R SHRI S. K. ROY HAS NOT OBJECTED TO ADMISSION OF ADDITIONAL GROUNDS BY STATING THE FACT THAT THE FACTS ARE ENTIRELY ON RECORDS. IN VIEW OF THE ABOVE FACTS AND THERE IS NO OBJECTION F ROM REVENUE, THE FACTS RELATING TO ADDITIONAL GROUNDS ARE AVAILABLE ON RECORDS AND ISSUE IS LEGAL , WE ADMIT THE SAME AND ADJUDICATE. 4. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE FILED ITS RETURN OF INCOME ON 27.07.2005 ASSESSMENT WAS TAKEN UP FOR SCRUTINY THR OUGH CASS AND NOTICES U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED ON ASSESSE E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICER ON VERIFICATION OF B ALANCE SHEET AND CAPITAL ACCOUNT OF ASSESSEE FOUND THAT ASSESSEE HAS RECEIVED A GIFT OF RS.4,00,000/- FROM M/S. S. K. SOMANY (HUF) THROUGH CHEQUE ON 23.02.2008. ASSESSEE CLAIM ED THAT THE GIFT WAS UTILIZED FOR PURCHASE OF UNITS OF MUTUAL FUND. ACCORDING TO ASSESSING OF FICER, RECEIPT OF GIFT OR ANY SUM RECEIVED WITHOUT ANY CONSIDERATION EXCEEDING RS.25,000/- IS TAXABLE IN TERMS OF PROVISIONS OF SECTION 56(2)(V) OF THE ACT AS INTRODUCED BY FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005, WHICH SAYS THAT WHERE ANY SUM OF MONEY EXCEEDING RS.25,000/- I S RECEIVED WITHOUT ANY CONSIDERATION BY AN INDIVIDUAL OR A HUF FROM ANY PERSON ON OR AFTER 01.09.2004, WHOLE OF SUCH SUM IS TAXABLE SUBJECT TO CERTAIN CONDITIONS, UNDER THE HEAD INCO ME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, LD. A.R WAS ASKED VIDE N OTE SHEET DATED 13.08.2007, WHY RS.4,00,000/- SHOULD NOT BE TREATED AS INCOME OF THE ASSESSEE U/S. 56(2)(V) OF THE ACT UNDER THE HEAD INCOME FROM OTHER SOURCES SINCE THE ASSE SSEE IS AN INDIVIDUAL AND SHE HAS RECEIVED A SUM OF RS. 4 LAKHS WITHOUT ANY CONSIDERATION. IN REPLY, THROUGH WRITTEN SUBMISSION DATED 29.08.2007, ASSESSEE SUBMITTED AS UNDER: ON THE GIFT BY C. K. SOMANY (IIUF) TO SHREYA SOMA NY TRUST TRUST IS ASSOCIATION OF PERSON. THE TAXABILITY AND THE TAX RATE OF TRUST DE PEND ON THE STATUS OF THE BENEFICIARIES. MS SHREYA SOMANY IS SOLE BENEFICIARY OF THE TRUST A ND HENCE IT IS TREATED AS INDIVIDUAL. THUS THE TAXABILITY OF THE TRUST DEPEND ON THE STAT US OF THE SOLE BENEFICIARY I. E. MS SHREYA SOMANY WHO IS THE GRAND DAUGHTER OF SHRI C. K SOMAN Y. WE WILL ALSO LIKE TO HIGHLIGHT THAT GIFT RECEIVED BY HUF FROM ANY RELATIVE IS TAX FREE UNDER SECTION 56(V). IN THIS CONTEXT IT IS WORTH TO NOTE THAT HUF ARE CONSIDERED AS PART OF TH E RELATIVE, CONSIDERING THE RELATIONSHIP 3 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 OF THE KARTA WITH THE DONOR. EXTENDING THE SAME LOG IC, THE HUF, IF DONATE ANY GIFT THE TEST OF THE RELATIVE IN THE HANDS OF THE DONEE WILL BE B ASED ON THE RELATIONSHIP WITH THE KARTA OF HUF AND IN THIS CASE THE KARTA OF THE DONOR HUF AND IN THIS CASE THE KARTA OF THE DONOR HUF IS SYT C. K. SOMANY, WHO IS GRANDFATHER OF THE ASSESSEE I.E. MS SHREYA SOMANY. THEREFORE IT IS CLEAR THAT GIFT GIVEN BY SHRI C. K. SOMANY (HUF) TO SHREYA SOMANY TRUST IS A GIFT MADE TO RELATIVE AND IS THUS TAX FREE U/S. 5 6(V). AFTER CONSIDERING THE REPLY GIVEN BY ASSESSEE, ASSE SSING OFFICER WAS OF THE OPINION THAT TECHNICALLY ANY SUM RECEIVED FROM HUF BY AN INDIVID UAL CANNOT BE TREATED AS EXEMPT AND SO THE SAME IS TAXABLE U/S. 56(2)(V) OF THE ACT. AS A NY RELATION BETWEEN ASSESSEE AND KARTA OF A HUF DOES NOT FIND ANY PLACE IN THE LIST RELATIVES, AS PROVIDED IN THE ACT, THE RECEIPT OF TOTAL SUM OF RS. 4 LAKHS WAS TREATED AS INCOME OF ASSESSEE UN DER THE HEAD INCOME FROM OTHER SOURCES AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO DISMISSED ASSESSEES GROUND OF A PPEAL BY OBSERVING AS UNDER: I HAVE PERUSED THE ASSESSMENT ORDER AND ALSO THE S UBMISSIONS MADE BY THE APPELLANT. THE LD. AUTHORISED REPRESENTATIVE ARGUED BEFORE ME THAT THE PROVISIONS OF SECTION 56(2)(V) ARE NOT APPLICABLE IN THE CASE OF THE APPE LLANT, AS THE APPELLANT IS ALSO A MEMBER OF THE HUF FROM WHICH THE GIFT HAS BEEN RECEIVED. I FIND NO FORCE IN THE ARGUMENTS OF THE APPELLANT. THE CASE LAWS RELIED UPON BY THE APPELLA NT ARE DISTINGUISHABLE ON FACTS AND ARE THEREFORE NOT RELEVANT. I AM INCLINED TO AGREE WITH THE ASSESSING OFFICER THAT GIFTS RECEIVED FROM RELATIVES ONLY ARE NOT COVERED UNDE R THE PROVISIONS OF SECTION 56(2)(V) AND RELATIVES ARE CLEARLY DEFINED, AS GIVEN ABOVE , AND IT DOES NOT INCLUDE ANY HUF (INCLUDING HUF OF WHICH THE PERSON, RECEIVING THE G IFT, IS A MEMBER). THE PROVISIONS OF SECTION 56(2)(V) ARE CLEARLY APPLICABLE IN THE CASE OF THE APPELLANT AND THE ASSESSING OFFICER HAS RIGHTLY MADE AN ADDITION OF RS.4 LAKHS. THE ORDER OF THE ASSESSING OFFICER CALLS FOR NO INTERFERENCE. THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED. THE APPEAL ON THIS GROUND IS DISMISSED. 4.0 IN GROUND NO.3, IT HAS BEEN SUBMITTED THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AS THE PAYMENT OF RS.4 LAKHS HAS BEEN MADE BY C.K. SOMANY HUF IN DISCHARGE OF ITS LEGAL OBLIGATION TO PROVIDE MAINTE NANCE, EDUCATION AND MARRIAGE EXPENSES OF DAUGHTER OF A COPARCENER, THERE WAS NO GIFT & THEREFORE ADDITION OF RS. RS.4 LAKHS WAS-LEGALLY UNJUSTIFIED. 4.1 IN GROUND NO.2, THE APPELLANT HAS ADMITTED THA T RS.4 LAKHS WERE RECEIVED BY WAY OF GIFT FROM C.K. SOMANY HUF. THE APPELLANT HAS ALS O ADMITTED, IN WRITTEN SUBMISSIONS, THAT A SUM OF RS.4 LAKHS WAS RECEIVED BY WAY OF GIF T. AND THEREFORE, THE ARGUMENT THAT THERE WAS NO GIFT FALLS ON FACTS. MOREOVER, THE PUR POSE FOR WHICH THE GIFT WAS RECEIVED IS OF NO MATERIAL SIGNIFICANCE IN SO FAR AS THE APPLIC ABILITY OF THE PROVISIONS OF SECTION 56(2)(V) IS CONCERNED. THE APPEAL ON THIS GROUND IS DISMISSED. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. ON ABOVE FACTS AND GROUNDS RAISED BY ASSESSEE, THE FIRST ISSUE ARISES IS, WHETHER THE AMOUNT RECEIVED BY ASSESSEE TRUST, THE TRUST CREATED FOR THE BENEFIT OF MS SHREYA SOMANY, GRANDDAUGHTER OF SHRI C. K. SOMANY I .E. THE SOLE BENEFICIARY OF ASSESSEE TRUST, FROM C. K. SOMANY HUF IS EXEMPT UNDER THE PROVISION S OF SECTION 10(2) OF THE ACT? 4 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 WE FIND THAT ADMITTEDLY, THE GIFT WAS MADE BY C. K. SOMANY HUF, OF WHICH MS SHREYA SOMANY WAS A MEMBER AS PER THE DECLARATION OF COPAR CENERS OF C. K. SOMANY HUF HAVING COPARCENERY INTEREST IN HUF ON THE DATE OF GIFT. I N THE DECLARATION COPARCENERS AFFIRMED THAT THE GIFT WAS MADE OUT OF NATURAL LOVE AND AFFECTION TO MS SHREYA SOMANY BEING YOUNGEST MEMBER OF SOMANY FAMILY. IT IS ALSO AN ADMITTED FA CT THAT THIS AMOUNT OF RS. 4 LAKHS WAS PAID OUT OF INCOME OF C. K. SOMANY HUF AND THIS FACT CAN BE VERIFIED FROM THE COPIES OF INCOME AND EXPENDITURE ACCOUNT OF HUF AS ON 31.03.1995, FI LED IN ASSESSEES PAPER BOOK. IT REVEALED THAT IN THE FY 1994-95, C. K. SOMANY HUF WAS HAVING NET PROFIT OF RS.24,77,592/- AND IT HAD SUBSTANTIAL INCOME OUT OF WHICH THIS GIFT WAS MADE TO ASSESSEE. NOW WE HAVE TO CONSIDER THAT IN VIEW OF THE PROVISIONS OF SECTION 10(2) OF THE A CT THIS GIFT IS EXEMPT OR NOT. THE PROVISIONS OF SECTION 10(2) OF THE ACT READ AS UNDER: INCOMES NOT INCLUDED IN TOTAL INCOME. 10. IN COMPUTING THE TOTAL INCOME OF A PREVIOUS YEA R OF ANY PERSON, ANY INCOME FALLING WITHIN ANY OF THE FOLLOWING CLAUSES SHALL N OT BE INCLUDED (1) (2) (SUBJECT TO THE PROVISIONS OF SUB-SECTION (2) OF SECTION 64,) ANY SUM RECEIVED BY AN INDIVIDUAL AS A MEMBER OF A HINDU UN DIVIDED FAMILY, WHERE SUCH SUM HAS BEEN PAID OUT OF THE INCOME OF THE FAMILY, OR, IN T HE CASE OF ANY IMPARTIBLE ESTATE, WHERE SUCH SUM HAS BEEN PAID OUT OF THE INCOME OF T HE ESTATE BELONGING TO THE FAMILY. FROM THE ABOVE PROVISIONS, WE FIND THAT, IN ORDER TO EARN EXEMPTION U/S. 10(2) OF THE ACT THERE ARE TWO CONDITIONS (I) THAT THE AMOUNT HAS BEEN PAID OUT OF THE INCOME OF HUF, AND (II) THE SUM HAS BEEN RECEIVED BY AN INDIVIDUAL AS A MEMBER OF HUF. THE EXEMPTION UNDER THIS PROVISION COMES INTO OPERATION ONLY WHEN THE AMOUNT PAID IS OUT OF THE INCOME OF HUF SUBJECT TO THE CONDITIONS OF SUB-SECTION (2) OF SECTION 64 OF THE ACT. WE FIND THAT IN SIMILAR CIRCUMSTANCES HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. NARAYANA GAJAPATI (1934) 2 ITR 288 (MAD) HAS CONSIDERED THE ISSUE AS UNDER: THESE QUOTATIONS SHOW THAT IN THE VIEW OF LORD DUN EDIN THE RIGHT TO MAINTENANCE WHICH THE SON OF A ZAMINDAR STILL POSSESSES IS NOT THE CR EATURE OF CUSTOM BUT IT IS AN INCIDENT TO THE ORDINARY JOINT FAMILY PROPERTY WHICH WAS LEFT U NTOUCHED BY CUSTOM DESPITE ITS ENCROACHMENT ON THE OTHER INCIDENTS. THE NEXT QUOTA TION FROM NILMONEY SINGH DEO V. HUGOO LALL SINGH DEO (5 CAL. 256), VIZ., ' WE CAN F IND NO INVARIABLE OR CERTAIN CUSTOM THAT ANY BELOW THE FIRST GENERATION FROM THE LAST R AJA CAN CLAIM MAINTENANCE AS OF RIGHT ' SHOWS THAT BEYOND THE FIRST GENERATION THERE IS THE POSSIBILITY THAT CUSTOM HAS MADE SOME ENCROACHMENT. THEREFORE, IT WAS HELD BY THEIR LORDS HIPS THAT IN EACH CASE THE CUSTOM MUST BE PROVED. THE DECISIONS IN KONAMMAL V. ANNADA NA [51 MAD. 189 (P. C.)] AND SHIBAPRASAD SINGH V. PRAYAG KUMARI DEBI [59 CAL. 13 99] DO NOT CARRY THE MATTER FURTHER. THE RESULT IS, THAT WE MUST FIND THAT THER E IS A JOINT FAMILY PROPERTY. IT HAS BEEN ARGUED THAT THE INCOME FROM WHICH THE MAINTENANCE I S PAID BELONGS SOLELY TO THE ZAMINDAR BUT WE HAVE NOTHING TO DO WITH THIS. THE Q UESTION IN THE CASE IS NOT WHETHER THE INCOME BELONGS TO THE ZAMINDAR OR WHETHER IT BELONG S TO THE JOINT FAMILY OF WHICH THE ASSESSEE IS A MEMBER BUT WHETHER THE ASSESSEE RECEI VED HIS PAYMENT AS A MEMBER OF A UNDIVIDED HINDU FAMILY. UNDOUBTEDLY HE DOES RECEIVE THIS PAYMENT OF RS. 6,000 BECAUSE 5 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 HE IS A MEMBER OF THE UNDIVIDED HINDU FAMILY. THE Q UESTION MUST THEREFORE BE ANSWERED IN THE AFFIRMATIVE. THIS IS SUBSTANTIALLY THE SAME AS THE ANSWER GIVEN BY THE ALLAHABAD HIGH COURT. THE ASSESSEE WILL HAVE RS. 250 COSTS FR OM THE INCOME TAX COMMISSIONER AND THE DEPOSIT OF RS. 100 WILL BE RETURNED TO HIM. 5. WE FIND THAT IN SIMILAR CIRCUMSTANCES HONBLE AL LAHABAD HIGH COURT IN THE CASE OF MAHARAJ KUMAR OF VIZIANAGRAM, IN RE. (1934) 2 ITR 1 96 (ALL) HAS CONSIDERED THE ISSUE AS UNDER: THE NEXT QUESTION IS WHETHER THE AMOUNT OF RS. 10, 000 A MONTH WHICH ASSESSEE IS IN RECEIPT OF CAN BE CONSIDERED TO BE INCOME RECEIVED BY HIM AS A MEMBER OF THE UNDIVIDED FAMILY TO WHICH HE BELONGS. AS ALREADY MENTIONED, I F THE SUM BE CONSIDERED TO BE IN THE NATURE OF A GIFT, PURE AND SIMPLE, BY THE ASSESSEE' S FATHER AND BROTHER IT CANNOT BE CHARACTERISED AS INCOME RECEIVED BY A MEMBER OF A H INDU UNDIVIDED FAMILY AS SUCH. THE COMMISSIONER OF INCOME TAX HAS NOT ADDRESSED HIMSEL F TO THIS ASPECT OF THE CASE THOUGH IT WAS CONTEMPLATED IN THE SECOND QUESTION FORMULAT ED BY THE ASSESSEE. IT SEEMS TO US THAT IF THE ASSESSEE WAS, BY CUSTOM APPLICABLE TO THE VI ZIANAGARAM ESTATE, ENTITLED TO BE MAINTAINED WITH THE REVENUE OF THE ESTATE AND IF TH E ALLOWANCE FIXED FOR HIM BY HIS FATHER AND BROTHER IS IN SATISFACTION OF HIS RIGHT TO BE S O MAINTAINED HE SHOULD BE CONSIDERED TO HAVE RECEIVED IT AS A MEMBER OF A HINDU UNDIVIDED F AMILY. ORDINARILY EVERY JUNIOR MEMBER OF AN UNDIVIDED FAMILY POSSESSED OF IMPARTIB LE PROPERTY IS NOT OF RIGHT ENTITLED TO CLAIM MAINTENANCE IN THE ABSENCE OF CUSTOM TO THE C ONTRARY. IN EACH CASE A JUNIOR MEMBER CLAIMING TO BE ENTITLED MUST ESTABLISH A CUS TOM TO THAT EFFECT. THE QUANTUM OF PROOF WILL HOWEVER, VARY WITH THE POSITION OF THE C LAIMANT. IT THE CASE OF A YOUNGERSON, HIS RIGHT OF MAINTENANCE FROM THE HOLDER OF THE IMPARTI BLE RAJ HAS BEEN SO OFTEN ASSERTED AND RECOGNISED THAT A COURT IS ENTITLED TO PRESUME THAT SUCH A RIGHT EXISTS. IN GANGADHARA RAMA RAO V. RAJAH OF PITTAPORE, WHICH WAS A CASE IN WHICH THE SON OF THE ADOPTED SON OF THE LAST PROPRIETOR OF AN IMPARTIBLE ESTATE CLAIMED MAINTENANCE FROM THE SUCCEEDING HOLDER OF THE ESTATE UNDER A WILL, THEIR LORDSHIPS OF THE PRIVY COUNCIL OBSERVED AS FOLLOWS : ' THIS PROPOSITION, IT MUST BE NOTED, DOES NOT NEG ATIVE THE DOCTRINE THAT THERE ARE MEMBERS OF THE FAMILY ENTITLED TO MAINTENANCE IN TH E CASE OF AN IMPARTIBLE ZEMINDARI. JUST AS THE IMPARTIBILITY IS THE CREATURE OF CUSTOM , SO CUSTOM MAY AND DOES AFFIRM A RIGHT TO MAINTENANCE IN CERTAIN MEMBERS OF THE FAMILY. NO ATTEMPT HAS BEEN, AS ALREADY STATED, MADE BY THE PLAINTIFF TO PROVE ANY SPECIAL CUSTOM I N THIS ZEMINDARI. THAT BY ITSELF IN THE CASE OF SOME CLAIMS WOULD NOT BE FATAL. WHEN A CUST OM OR USAGE WHETHER IN REGARD TO A TENURE OR A CONTRACT OR A FAMILY RIGHT, IS REPEATED LY BROUGHT TO THE NOTICE OF THE COURTS OF A COUNTRY THE COURTS MAY HOLD THAT CUSTOM OR USAGE TO BE INTRODUCED INTO THE LAW WITHOUT THE NECESSITY OF PROOF IN EACH INDIVIDUAL CASE. IT BECOMES IN THE END TRULY A MATTER OF PROCESS AND PLEADING. ANALOGY MAY BE FOUND IN INSTA NCES IN THE LAW MERCHANT OR IN CERTAIN CUSTOMS IN COPYHOLD TENURE. IN THE MATTER I N HAND THEIR LORDSHIPS DO NOT DOUBT THAT THE RIGHT OF SONS TO MAINTENANCE IN AN IMPARTI BLE ZEMINDARI HAS BEEN SO OFTEN RECOGNISED THAT IT WOULD NOT BE NECESSARY TO PROVE THE CUSTOM IN EACH CASE. ' IN THE CASE BEFORE THEIR LORDSHIPS THE RIGHT OF MA INTENANCE WAS NEGATIVED FOR TWO REASONS NAMELY, FIRSTLY, BECAUSE THE PLAINTIFF DID NOT CLAIM A RIGHT OF MAINTENANCE ON THE GROUND OF RELATIONSHIP WITH THE HOLDER OF THE IMPAR TIBLE RAJ AND SECONDLY THAT HE WAS NOT THE SON OR SUCH NEAR RELATION OF THE HOLDER OF THE IMPARTIBLE RAJ IN WHOSE FAVOUR A CUSTOMARY RIGHT OF MAINTENANCE COULD HAVE BEEN PRES UMED, HAVING REGARD TO THE NOTORIETY OF SUCH USAGE. IN THE CASE BEFORE US THE GENERAL OBSERVATION MADE BY THEIR LORDSHIPS OF THE PRIVY COUNCIL AND QUOTED ABOVE FUL LY APPLIES. PRIMA FACIE AND IN THE ABSENCE OF PROOF TO THE CONTRARY THE YOUNGER SON OF THE LATE MAHARAJA, AS THE ASSESSEE IS, WAS OF RIGHT ENTITLED TO BE MAINTAINED OUT OF THE I NCOME OF THE IMPARTIBLE PROPERTY. THE 6 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 ASSESSEE IS NOT RECEIVING ANY OTHER ALLOWANCE FOR M AINTENANCE. IT IS PERMISSIBLE TO INFER THAT THE MAHARAJA RECOGNISED HIS RIGHT AND FIXED IT IN THE THEN CIRCUMSTANCES OF THE ESTATE AT RS. 5,000 A MONTH. SUBSEQUENTLY HIS BROTHER RAIS ED IT TO RS. 10,000, PROBABLY IN VIEW OF THE IMPROVED RESOURCES OF THE ESTATE ON WHICH TH E AMOUNT MUST NECESSARILY DEPEND. THE LEARNED ADVOCATE FOR THE INCOME TAX COMMISSION ER RELIED ON CERTAIN CASES IN WHICH ALLOWANCES PAID TO WIDOWS WERE HELD TO BE SEPARATELY TAXABLE. THIS CLASS OF CASES IS QUITE DIFFERENT FROM THE CASE BEFORE US, A S WIDOWS CANNOT BE REGARDED AS MEMBERS OF AN UNDIVIDED HINDU FAMILY WITHIN THE MEA NING OF SECTION 14 (1), INCOME TAX ACT. ON THE SAME GROUND THE CASE OF KISHEN KISHORE V. COMMISSIONER OF INCOME TAX, PUNJAB, IS DISTINGUISHABLE. THE LEARNED JUDGES WHO DECIDED THAT CASE DEFINITELY HELD THAT THE ASSESSEE WAS SEPARATE. IN THEIR VIEW THE ASSESS EE HAD ACCEPTED THE ALLOWANCE AND SEVERED HIMSELF FROM THE FAMILY. THE ALLOWANCE COUL D NOT BE CONSIDERED AS PART OF THE FAMILY PROPERTY SO AS TO MAKE THE HOLDER OF THE IMP ARTIBLE PROPERTY LIABLE FOR THE INCOME- TAX. IN THE CASE BEFORE US THE ALLOWANCE IS PART OF THE INCOME OF THE RAJ AND THE TAX IS PAYABLE AT THE SOURCE. FOR THESE REASONS WE ANSWER THE FIRST PART OF THE QUESTION REFERRED TO US AS FOLLOWS : THE AMOUNT OF RS. 1,20,000 RECEIVED ANNUALLY BY TH E ASSESSEE FROM THE VIZIANAGARAM RAJ IS NOT LIABLE TO INCOME-TAX AND SU PER-TAX UNLESS IT IS SHOWN BY THE INCOME TAX DEPARTMENT THAT THE ASSESSEE WAS NOT ENT ITLED BY CUSTOM TO ANY MAINTENANCE OUT OF THE INCOME OF THE RAJ. FROM THE CASE LAW OF HONBLE MADRAS HIGH COURT IN T HE CASE OF NARAYANA GAJAPATI (SUPRA) AND OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF MAHA RAJ KUMAR OF VIZIANAGRAM, IN RE. (SUPRA) AND THE FACTS OF THE PRESENT CASE THAT THE GIFT IS GIVEN BY HUF TO ASSESSEE TRUST, THE SOLE BENEFICIARY OF THE TRUST IS ASSESSEE MS SHREYA SOMA NY, OUT OF THE INCOME OF HUF, WE ARE OF THE VIEW THAT THIS SUM IS EXEMPT U/S. 10(2) OF THE ACT. 6. ANOTHER ASPECT OF ASSESSABILITY OF THIS SUM UNDE R THE PROVISIONS OF SECTION 56(2)(V) OF THE ACT, SINCE WE HAVE ADJUDICATED THE ADDITIONAL G ROUNDS IN FAVOUR OF THE ASSESSEE AND THE SUM GIFTED BY HUF TO ASSESSEE TRUST IS EXEMPT U/S. 10(2 ) OF THE ACT, THE ISSUE OF ASSESSABILITY UNDER SECTION 56(2)(V) OF THE ACT WILL BE ACADEMIC AND NE EDS NO ADJUDICATION. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 8. ORDER PRONOUNCED IN OPEN COURT ON 02.12.2011. SD/- SD/- . . ! ' '' ' $# $# $# $# , ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 2ND DECEMBER, 2011 '12 $&34 $5' JD.(SR.P.S.) 7 ITA 120/K/2009 SHREYA SOMANY TRUST. A.Y.05-06 / 6 -$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT SHREYA SOMANY TRUST, 2, RED CROSS PLACE , 2 ND FLOOR, KOLKATA-700 001. . 2 -.+, / RESPONDENT, ITO, WARD-36(2), KOLKATA. 3 . $/& ( )/ THE CIT(A), KOLKATA 4. $/& / CIT, KOLKATA 5 . '$? -$& / DR, KOLKATA BENCHES, KOLKATA .7 -$/ TRUE COPY, /&@/ BY ORDER, #4 /ASSTT. REGISTRAR .