The main legal point established in the judgment is the interpretation and application of Section 41(1) of the Indian Income Tax Act, specifically regarding the assessment and taxation of trust income.

JUDGMENT

GENTLE, J. - This reference arises out of a deed creating a trust which was executed by the late Rai Harendra Kumar Roy Chowdhury Bahadur on September 3, 1930. By the deed of trust the settlor granted conveyed, assigned and transferred unto the trustees several lands and other immovable property, mortgages of which he was the grantee, securities and investments and the goodwill of the settlors banking and money-lending business as a going concern together with its assets, outstanding and liabilities. The properties are specified in schedules A, B, C and D and their value is expressed to be about rupee nineteen lacs.

The first trustee was the settlor himself and upon his death or retirement his son Ganendra Kumar Rai Chowdhury should become the trustee and upon his death or retirement the grandsons of the settlor indicated in the instrument. The son, Ganendra Kumar Rai Chowdhury, is the present trustee.

The deed directed the trustee to collect the income from all the trust properties and out of the income he should pay the costs and charges on the business and realising the income and outstanding carry out the worship of the family deities in the same manner as the settlor had done up to the execution of the deed; maintain some specified educational institutions and a hostel on the same scale as the settlor; pay to charities (which are not described or indicated) up to the amounts stated; pay the expenses of pilgrimages of members of the family on such scale and at such times as the trustee in his discretion should think proper, and lastly, pay the cost of maintenance and medical attendance and treatment of the settlor, his sons, his grandsons and members of their respective families including their mothers, wives, and children and also the customary social ceremonies of any of them, the scale of expenditure being such as the trustee in his discretion should consider proper. Further the settlors wife was to have the right of residence in the settlors house; his daughters should be at liberty to reside in the house as long as their mother should live there. One daughter, named in the deed, was to receive Rs. 25/- per month so long as she lived away from her mother during the latters lifetime and from the rest of the family after her mothers death. A daughter in-law, the widow of predeceased son of the settlor, was to receive Rs. 25/-per month and the son was to be paid Rs. 100/- monthly whilst he acted as trustee.

The trust was to continue for twenty five years from its creation and at the conclusion of that period the corpus of the trust property should devolve upon the settlor, if he were still alive, and it he had died meanwhile it would devolve upon the settlers sons, grandsons and great grandsons as indicated in the deed.

The sector died in the year 1936. Until the income tax year 1939-40 two assessments were made upon the income, one in respect of the profits from the business, which as in the hands of the trustee, and the other in respect of the income from the other sources and investments which also were in the hands of the trustee. The first assessment was made upon the trustee as an individual and the second upon a Hindu undivided family. In the year 1940-41 all the income of the trust was included in one assessment and tax was levied at the maximum rate. This reference concerns the last assessment and the points for decision are whether the inclusion of the whole of the trust income in the assessment is correct and also whether this income is subject to tax at the maximum rate.

All the properties in the hands of the trustee are trust properties and the trustee, as such, carries one the business, and collects the profits from it together with the income from the various investments. The several properties, including the business, from which income is derived are not joint family properties nor properties belonging to a Hindu undivided family but they are trust properties belong to the trust. The cestui qui trusts a