Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
COMMISSIONER OF INCOME-TAX, GUJARAT
Vs.
RESPONDENT:
JAYANTILAL AMRATLAL, AHMEDABAD
DATE OF JUDGMENT:
05/05/1967
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1968 AIR 189 1967 SCR (3) 946
ACT:
Indian Income-tax Act, 1922, s. 16(1)(c), proviso
1--Settlor making charitable trust and registering it under
s. 35-- Bombay Public Trusts Act, 1950--S. 16(1)(c) proviso
1 whether can be applied to income of trust on presumption
that settlor may derive benefit contravening the Bombay
Act--Facts justifying applicability of s. 16(1)(c) proviso
1.
HEADNOTE:
J executed a trust deed whereby he created a charitable
trust. The 4iced was registered with the Charity
Commissioner under the Bombay Public Trust Act, 1950. For
the year 1958-59 the Income-tax Officer held that since the
settlor had reserved to himself wide powers for own benefit
and had also utilised those powers to his benefit, the case
was coveted by s. 16(1)(c) of the Income-tax Act, 1922.
Accordingly the Income-tax Officer taxed the income of the
trust in the hands of the ’settlor. A similar order was
passed for the year 1959-60. In his appeal before the
Appellate Assistant Commissioner the settlor relied on s. 35
of the Bombay Public Trusts Act, 1950 to .show that he was
thereby precluded from utilising the funds for his own
benefit but his plea was not accepted. The Appellate
Tribunal, however, relying on the terms .of the deed itself
decided in favour of the settlor and. the High Court in
reference did the same. The revenue appealed.
HELD: (i) There was no doubt’ that under the Trust Deed
the settlor had very wide powers and could direct’ the
Trustees to. grant loan him. The Trustees could even grant
a loan to a firm in which he was interested. But this would
be contrary to the provisions of s. 35 the Bombay Trust Act.
The said Act to the extent it operates must override
provisions in the Trust Deed. [953E-954A-B]
The Legislature in proviso 1 to s. 16(1)(c) is thinking
of powers lawfully given and powers lawfully exercised. Any
person can commit breach of trust and assume power over
income or assets but for that reason the income of the trust
cannot be treated as the income of the settlor under the
proviso.
Commissioner of Income-tax, West Bengal v. Sir S.M.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
Bose, 21 ].T.R. 135 and Commissioner of Income-tax, Bombay
North v. Mathuradas Mangaldas Parekh, I.T. Ref. No. 4/54,
Judgment by Bombay High Court dated August 26, 1954,
referred to.
(ii) The words ’re-assume power’ give indication to the
correct meaning of s. 16(1)(c) proviso 1. The latter part
of the proviso contemplates 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 re-assume power within
the first proviso. Otherwise a settlor could never name
himself a sole trustee. The mere fact that the settlor can
derive some direct or indirect benefit under a trust deed
would not’ bring the deed within the first proviso. [955G-
H; 966A-B]
947
Chamberlain v. Inland Revenue Commissioner 25 T.C. 317,
Tulsidar Kalichand v. Commissioner of Income-tax, 42 I.T.R.
1, WoIfson v. Commissoners Inland Reventte, 31 T.C. 141,
Saunders v. Commissioners
Inland Revenue, 37 T.C. 416, referred to.
Commissioner of Income-tax, Punjab v.S. Raghbir Singh,
57/.T.R., followed.
On an examination of terms of the Trust Deed the Court held
none of its clauses came within the purview of Proviso 1.
[956C-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 474-477
966.
Appeals by special leave from the judgment and order
dated September 5, 1963 of the Gujarat High Court in
Income-tax Reference No. 19 of 1962.
S.T. Desai, A. N. Kirpal, R.N. Sachthey and S.P. Nayyar
for the appellant (in all the appeals).
R.J. Kolah, M.L. Bhakta and O.C. Mathur, for the
respondents (in all the appeals).
The Judgment of the Court was delivered by
Sikri, J. These four appeals by special leave are’
directed against the judgment of the Gujarat High Court in
Income Tax Reference No. 19 of 1962, whereby the High Court
answered the questions referred to it by the Income-tax
Appellate Tribunal against the Commissioner of Income-tax,
who is the appellant before us. The reference was in
respect of assessment years 1955-56 and 1956-57 in the case
of Shri Jayantilal Amratlai (Individual) and in respect of
assessments years 1958-59 and 1959-60 in the case of
Jayantilal Amratlal Charitable Trust Ahamedabad. The
questions referred are:
(1 ) Whether on the facts and in the circumstances of
the case, the Tribunal was right in holding that the income
of Jayantilal Amratlal Charitable Trust was not assessable
in the hands of the settlor Jayantilal Amratlal under the
first proviso to Sec. 16(1)(c) of the Income-tax Act for the
assessment years 1955-56 and 1956-57 ?
(2) Whether on 1he facts and in the circumstances of the
case, the Tribunal was right in holding that the income of
the Trust should be considered in the assessment of the
trustees and that they were entitled to the benefits of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
refunds attached to the dividends from the Trust properties
for ’the assessment years 1958-59 and 1959-60 ?
The answer to these quest.ions depends on the true
interpretation of s. 16(1)(c) of the Indian Income-tax Act,
1922, and the interpretation of the Trust Deed dated June
19, 1947, and
948
to appreciate the points fully it is necessary to give a few
facts which are stated in the statement of the case.
Jayantilal Amratlal, individual, hereinafter referred to as
the settlor, executed a trust deed whereby he settled 80
ordinary shares of M/s Jayantilal Amratlal Ltd., on trust
and created a trust known as "Jayantilal Amratlal Charitable
Trust" to carry out the following various objects set out in
the Trust Deed :
"For the relief of poor, for education, for
medical relief, for advancement of religion,
knowledge, commerce, health, safety or any
other objects beneficial to mankind."
This Trust Deed was registered with the Charity Commissioner
under the Bombay Public Trust Act, 1950. The Department
accepted this trust as a valid charitable trust and gave the
necessary relief to the trustees in respect of the income of
the Trust. till the assessment year 1957-58.
The Income-tax Officer, while dealing with the assessment of
Jayantilal Amratlal Charitable Trust for the year 1958-59,
wrote A letter to the Trust to show cause why the income of
the Trust should not be included in that of the settlor and
why the case of the Trust should not be decided accordingly.
The Managing Trustee submitted his reply. The Income-tax
Officer wrote lengthy order holding that on the facts the
case was covered by the first proviso to S. 16 ( 1 ) (c).
He was impressed both by the wide powers given to the
settlor and the way in which the settlor had been utilising
his powers under the various clauses of the Trust Deed. He
held :
"It is not necessary that there should be
diversion of income or assets from char-table
purposes to noncharitable purposes to
constitute "retransfer of assets to or re-
assumption of power over" the income or assets
of the settlor. It is not even necessary for
the purpose of 1st proviso to section
16(1)(c), especially its later part i.e. "give
-the settlor a right to reassume power
directly or indirectly over the income or
assets" that income or assets should be used
for personal ends. For diversion of such
assets or income from one charitable purpose
to another in accordance with the wishes of
the settlor and the utilisation of income and
investment of income or assets not in full
conformity with the desires of the trustees
would be enough to drag the Trust property in
the ambit of section 16 (I) (c). In the
instant case, the settlor is all in all, he is
the managing trustee and in the event of a
conflict of opinion amongst the trustees the
settlor would exercise predominating
949
influence both as managing trustee as also in
his capacity of an arbitrator and his decision
would be binding on all. The most important
point which needs consideration is that all
the inherent powers and discretion for the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
income and corpus of the Trust property remain
with The settlor, in his capacity as settlor
and not by way of his capacity of a trustee."
The Income-tax Officer accordingly held that the income of
the Trust would not be computed in the hands of the trustees
but would be computed in the hands of the settlor under s.
16(1) (c). For the assessment year 1959-60 he passed a
similar order on the same date.
On the same day he also dealt with the assessments of
Jayantilal Amratlal, individual, for the years 1955-56 and
1956-57. Following his reasoning he included the relevant
income of the Trust in the hands of Jayantilal Amratlal.
Four appeals were taken to the Appellate Assistant Commis-
sioner who, by his two orders dated November 8, 1960,
dismissed the appeals. Before him the settlor relied on s.
35 of the Bombay Public Trust Act, 1950, but the Appellate
Assistant Commissioner held that this did not assist the
settlor because the Income-tax law did take into
consideration income derived directly or indirectly by
illegal means. He felt that the settlor "could not be
precluded from utilising funds of the trust directly or
indirectly to his benefit since he had a right under the
settlement to do so and the Bombay Public Trust Act did not
hold any fear for him as the penalties leviable were not of
a deterrent nature, compared to the advantages that he could
gain directly or indirectly by re-assuming control over the
investments or its income".
On appeal, Income-tax Appellate Tribunal, however, reversed
these orders and held that the income from the Trust was not
hit by the first proviso to s. 16(1)(c). The Tribunal
ignored the factual position relied on by the Income-tax
Officer and the Appellate Assistant Commissioner and
confined itself only to the Trust Deed. Regarding the
offending clauses 4, 10 and 21 of the Trust Deed, which we
will presently refer to, the Appellate Tribunal held:
"We see nothing in these clauses which confer
on the assessee the right to retransfer to the
assessee directly or indirectly the income or
the assets or to reassume power over them. He
has always to exercise these powers within the
framework of the Trust. There is no doubt
power in clause (10) to invest in any manner
and thereby in the assessee’s own companies,
but this is overridden by clause 35 of the
Bombay Trust
9 5 0
Act under which it is registered. If the
Charity Commissioner has chosen not to take
action, it may also be that he has considered
the matter and approved the action. It is
purely his responsibility. The. fact that the
investment itself has not been made illegal
under the Trust Act and that the assessee can
offend the provisions with impunity as the
penalty is light are all matters extraneous to
this consideration which has to be confined
only to the provisions in the deed."
At the instance of the Commissioner of Income-tax the
Appellate Tribunal stated the case and referred the
questions which we have already reproduced above. The High
Court held :
"When a statute talks about a right to
reassume, it must mean a lawful right which
can be lawfully exercised. . . . a right to
reassume must be given to the settlor
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
independently of any third party and dependent
upon his own volition. It is true that the
Charity Commissioner may grant leave to the
settlor, but he may or may not grant it. A
right to reassume cannot rest dependent upon
whether the Charity Commissioner may or may
not grant sanction."
Shelat, C.J., observed
"Surely, it must be presumed that the Charity
Commissioner would not grant his sanction to
an investment which is bound to result in a
conflict of duty and interest on the part of
the settlor who is also a trustee. Therefore,
such a right, if it can be called a right, is
not one of any substance and cannot,
therefore, be construed as a right to reassume
power over the trust assets or the income
thereof, as contemplated by proviso I to
section 16(1)(c)."
"A loan, by the very nature of it, cannot be
said to amount to an exercise of dominion or
control over its subject matter. It is
repayable and is given on conditions as to the
time of repayment and interest, if any. By
taking a loan a settlor does not exercise over
its subject matter power.or dominion which,
but for the trust or the settlement, he- would
have been able to exercise."
Section 16(1) (c) reads as follows
"16. Exemptions and exclusions in determining
the
total income.-.
(1) In Computing the total income of an
assessee.
(a) ......
951
(b)......
(c) all income arising to any person by
virtue of a settlement or disposition whether
revocable or not, and whether effected before
or after the commencement of the Indian
Income-tax (Amendment) Act, 1939 (VII of
1939), from assets remaining the property of
the settlor or disponer, shall be deemed to be
income of the settlor or disponer, and all
income arising to any person by virtue of a
revocable transfer of assets shall be deemed
to be income of the transferor :
Provided that for the purposes of this clause
a settlement, disposition or transfer shall be
deemed to be revocable if it contains any
provision for the retransfer directly or
indirectly of the income or assets to the
settlor, disponer or transferor, or in any way
gives the settlor, disponer or transferor a
right to reassume power directly or indirectly
over the income or assets;
Provided further that the expression
"settlement or disposition" shall for the
purposes of this clause include any
disposition, trust, covenant, agreement, or
arrangement, and the expression "settlor or
dispone r" in relation to a settlement or
disposition shall include any person by whom
the settlement or disposition was made :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
Provided further that this clause shall not
apply to any income arising to any person by
virtue of a settlement or disposition which is
not revocable for a period exceeding six years
or during the life-time of the person and from
which income the settlor or disponer derives
no direct or indirect benefit but that the
settlor shall be liable to be assessed on the
said income as and when the power to revoke
arises to him."
The learned counsel for the appellant, Mr. S. T. Desai, has
submitted three propositions before us (1) The operation of
the first proviso to s. 16(1) (c) depends only on the
settlement and its terms and not on any provision of the
Bombay Public Trusts Act, which may or may not be observed;
(2) The absolute powers reserved over the income and corpus
of the trust property remain vested in the settlor in his
capacity as the settlor and not as trustee, and further they
fall within the purview of the first pro. viso to s. 16(l.)
(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
952
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 :
"8. The Trustees shall from time to time at
the direction of the settlor during his life
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
time and after his death may at any time at
their discretion deliver or hand over the
income of the Trust Premises or any part of
such income to any institution, association or
society to be applied for all or any of the
purposes of these presents without being bound
to see to the application thereof or being
liable for the loss or misapplication
thereof."
Clause 9 enables the Trustees to invest the residue, etc.,
and to accumulate the same and apply towards the objects of
the Trust. Clause 10 inter alia empowers the Settlor to
give directions regardin- the investment of moneys "as are
authorised by law for invest-
953
ment of trust premises or in ordinary or preference shares
of joint stock companies, whether partly or fully paid, or
in debentures or in giving loans to any public company or
firm of good standing and reputation or in the purchase or
mortgage of any movable or immovable property with power to
the Trustees with the like direction to vary or transpose
the said investments into or for others of the same or of a
like nature." Clause II inter -alia enables the Settlor to
direct the Trustees to vary the investments. Out of the
other clauses we need only mention clause 21 which reads as
follows :
"All questions arising in the management and
administration of the trusts or powers hereof
and all differences of opinion amongst the
Trustees shall be disposed of in accordance
with the opinion of the Settlor during his
lifetime and on and after the death of the
settlor in accordance with the opinion of the
majority of the Trustees in the case of their
being equally divided the trustee senior most
in age shall have a casting vote."
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 :
"35(1) : Investment of Public Trust Money
Where the trust property consists of money and
cannot be applied immediately or at an early
date for the purposes of the public trusts the
trustee shall be bound (notwithstanding any
direction contained in the Instrument of the
Trust) to deposit the money in any scheduled
bank as defined in the Reserve Bank of India
Act, 1934, in the Postal Savings Bank or in a
Cooperative Bank approved by the State
Government for the purpose or to invest it in
Public security;
Provided......
Provided further that the Charity Commissioner
may by general or special order permit the
Trustee of any public trust or classes of such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
trusts to invest the money in any other
manner."
9 54
Mr. S. T. Desai submits that we cannot take into
consideration the provisions of the Bombay Public Trust Act.
We are unable to accept this submission. The Bombay Public
Trust Act must, to the extent it operates, override any
provisions in the Trust Deed. As Shelat, J., observed,
"when proviso 1 talks about a right to reassume power, prima
facie, that must mean that there, is such power lawfully
given under the deed of trust." It seems to us that the
Legislature, in proviso I to s. 16(1)(c) is thinking of
powers lawfully given and powers lawfully exercised. Any
person can commit breach of trust and assume power over the
income or assets but for that reason the income of the trust
cannot be treated as the Income of the settlor under the
proviso.
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 :
"The first answer to this contention is that
them trustees would be committing a breach of
the law if they were to advance moneys to
themselves. There is a clear prohibition
under Section 54 of the Trusts Act."
If we do not ignore the provisions of the Bombay Public
Trust Act and the general principles applicable to public
trusts, the question arises whether on a true interpretation
of the first proviso to S. 16 ( 1 ) (c) the powers reserved
to the settlor under the Trust Deed come within its-
mischief. The learned counsel says that the words of the
proviso are very wide. I He points out the reasons why
Parliament has inserted this proviso. He draws our atten-
tion to -the -following observations of Lord Macmillan in
Chamberlain v. Inland Revenue Commissioners(1), quoted
in.--Tulsidas Kilachand v. Commissioner of Income-tax(1)
(1) 21 I.T.R. 135 at p. 141.
(2) I.T. Ref. No. 4 of 1954, judgment dated August 26,
1954, reported in "unreported Income-tax Judgmenis of the
Bombay High Court, Book One, Published by Western India
Regional Council of the Institute of Chartered Accountants
of India, Bombay" p. 314 at p. 316.
(3) 25 T.C. 317. 329. (4)
42 I.T.R. 1, 4.
955
.lm15
"This legislation.... (is) designed to overtake and
circumvent a growing tendency on the part of taxpayers to
endeavour to avoid or reduce tax liability. by means of
settlements. Stated quite generally, the method consisted
in the disposal by the taxpayer of part of his property in
such a way that the income should no longer be receivable by
him, while at the same time he retained certain powers over,
or interests in, the property or its income. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
Legislature’s counter was to declare that the income of
which the taxpayer had thus sought to disembarrass himself
should, notwithstanding, be treated as still his income and
taxed in his hands accordingly."
This Court held in that case, that these observations
applied also to the section under consideration, and the
Indian provision is enacted with the, same intent and for
the same purpose. But even so, Lord Simonds observed while
construing a similar provision in Wolfson v. Commissioners
of Inland Revenue(1) :
"It was urged that the construction that I
favour leaves an easy loophole through which
the evasive taxpayer may find escape. That
may be so; but I will repeat what has been
said before. It is not the function of a
court of law to give to words a strained and
unnatural meaning because only thus will a
taxing section apply to a transaction which,
had the Legislature thought, of it, would have
been covered by appropriate words."
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.
(2) 37 T.C. 416,431,
956
to take the income or assets outside the provisions of the
Trust Deed. Mr. Desai says that if a settlor can derive
some direct or indirect benefit under a trust deed the trust
would fall within first proviso. But the first proviso does
not use these words. The words "direct or indirect benefit"
occur only in the third proviso. This Court held in
Commissioner of Income-tax, Punjab v. S. Raghbir Singh(1)
that although the settlor in that case obtained a benefit
from the trust-payment of his debts-the first proviso was
not attracted.
Coming to the various clauses of the Trust Deed there is no
doubt that the settlor has retained power to see that his
wishes are carried out while he is alive. But he can only
direct the carrying out of his wishes within the terms of
the Trust Deed. What he can direct under clause 4 is the
application of income to a particular charitable purpose.
Similarly under clause 6 he can nominate the charitable
object and the fund or investment which should be utilised
for that object. This is in no sense a power to reassume
control. Clause 8 enables the settlor to delegate the
carrying out of a particular charitable object. For
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
instance, he could direct some contributions to be made to a
hospital or a school without obliging the trustees to see
that the hospital or the school does not misapply the funds.
Clauses 10 and It which enable the settlor to give
directions regarding the investment must be read subject to
the provisions of the Bombay Public Trust Act and the
general principles of law relating to trusts. We have
already said that he could not legally direct a loan to be
made to himself. Further it is difficult to subscribe to
the,, proposition that a loan to a company in which the
settlor is interested would give power to the settlor over
the assets within the meaning of the first proviso. Clause
21 only shows the wide powers which the settlor has reserved
to himself. None of these clauses comes within the purview
of Proviso 1.
In the result we agree with the conclusions of the High
Court. The appeals accordingly fail and are dismissed with
costs. One hearing fee.
G.C. Appleas dismissed.
(1) 57 I.T.R. 408.
957