COMMISSIONER OF WEALTH TAX, ALLAHABADversusARVIND NAROTTAM (INDL.)

          COMMISSIONER OF WEALTH TAX, ALLAHABAD
A
                                         v.
                       ARVIND .NAROTTAM (INDL.)

                                AUGUST 9, 1988

B.     [R.S. PATHAK, CJ. AND SABYASACHI MUKHARJI, J.)

           Wealth Tax Act, 1957-S. 21(2)-Assets held under Trusts-Mere
     right to be considered for distribution of income or corpus cannot be
     regarded as an 'interest'-There must be a right, present or contingent,
     before it can be said that an assessee has an interest.
c          The respondent who was entitled to minimum annual payments of
     specified amounts under the three trust deeds in question was assessed
     to tax under sub-s. (2) of s. 21 of the Wealth Tax Act, on the entire value
     of the assets held by the trusts. On appeal, the Appellate Assistant
     Commissioner confined the liability of the assessee to wealth tax on the
D    capitalised value of the minimum amounts payable under the trust
     deeds, and his decision was affirmed, on second appeal, by the Appel-
     late Tribunal. At the instance of the Revenue, the opinion of the High
             . .
     Court was sought on the question whether the finding that it was only
                   •' ,::.•
     the capitalised ~alue of the interest of the assessee that had to be
     included in the·net wealth of the asse.See was justified. The High Court
E    answered the question in the affirmative, in favour of the assessee and
     against the Revenue.

           Dismissing the appeals,

           HELD: A mere right to be considered for distribution of the in·
F come or of the corpus of the Trust Fund cannot be regarded as an
     'interest' since it is not capable of valuation. There must be a right,
     present or cont~ngent, before it can be said that an assessee has an
     interest. The instant case is one where beyond the specified minimum
     the assessee was not entitled to anything more. [273F'-G I

G        Gartside & Anr. v. Inland Revenue Commissioners, LR, [1968]
     Appeal Cases 553, relied 0 n.

         Padmavati Jaykrishna Trust & Another v. Commissioner of
   Wealth Tax, Gujarat, [1966] 61l.T.R.66; Commissioner of Wealth-Tax
   Bombay v. Trustees of Mrs. Hansbai Tribhuwandas Trust, ll968J 68
ff I. T.R. 527; Commissioner of Wealth-Tax, A.P. v .. Trustees of H.E.H.
                                        266
              COMMR. OF WEALTH TAX '· A. NAROTTAM                      267

Nizam's Family (Remainder Wealth) Trust, [1977l 108 I.T.R SSS; Com-           A
missioner of Wealth-1ax, A.P. v. Trustees of H.E.H. The Nizdm's
Sahabzadi Anwar Begwn Trust, [1981) 129 I.T.R. 796; Leedale
(Inspector of Taxes) v. Lewis, [1982) 3 All E.R. 808 and McDowell and
Co. Ltd. v. Commer'cict! Tax Officer, [198S) IS4 I.T.R. 148,
distinguished.
                                                                              B
      2. There is no doubt that the expression 'property' iimst hear a
con1prehensive import. The question remains whether what is conveyed
under the three deeds of settlement to the assessee is a right to anything
ntore than the prescribed minimum under each deed. It is apparent that
the assesse~ was entitled only to the minimum prescribed in each of the
deeds of settlement. Whether or not he received any further amount out
of the net income of the Trust Fund was left entirely in the discretion of    c
the Trustees. There was no right in the assessee to any portion of the .net
income in excess of the minimum guaranteed to him. It is the minimum
alone which he could claim as his property. So also, on the distribution
of the accumulated balance as capital at the end of the stipulated period
there was no right in him to receive any part thereof. It was open to the     D
Trustees to ignore him altogether and they could pay it to such other
men1bers of the family as they chose. [272H; 273A-B)

     Ahmed G.H. Ariff and Others v. Commissioner of Wealth-tax,
Calcutta, [1970] 76 I.T.R. 471, referred to.
                                                                              E
Per Sabyasachi Mukharji, J:

       On behalf of the Revenue an appeal was made before us that we
should really construe the three Trust-Deeds together and see 'the game
of the hidden purpose' behind these Trust-Deeds which were, in fact,
for the sole and exclusive benefit of the assessee. It is true that tax       F
avoidance in an under-developed developing economy .should not be
encouraged on ·practical as well as ideological grounds. One . would
wish; that one-tould get the enthusiasm of Justice Holmes that' taxes are
the price of civilization and one woutd like to pay that price to buy
civilization. But the question which many ordinary tax-payers very
often in a country of shortages with ostentious consumption and depri-        G
vat16n for the large masseii ask, is does he with taxes buy civilization or
does he facilitate the wastes and ostentiousness of the few. Unless waste
and ostentiousness in Government's spendings are avoided or
eschewed, no amount of.moral sermons would change people's attitude
to tax avoidance. In any event, however, where the true effect on the
construction of the Deeds is clear, as in this case, the appeal to dis-       H
    268        SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

    courage tax avoid?nce is not.a relevant consideration. [274E-H; 275A-C]
A
          McDowell & Company Limited v. Commercial Tax Office,
    [1985] 154I.T.R 148referred-to.

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
8   2034-2036 of 1974.

         From the Judgment and Order dated 1.10.1973 of the Gujarat
    High Court in Wealth Tax Reference No. 16 of 1971.

          Dr. Gauri Shankar, Miss A. Subhashini for the Appellant.
c         Harish Salve and Mrs. A.K. Verma for the Respondent.

          The following Judgments of the Court were delivered:

         PATHAK, CJ. These appeals by certificate granted by the
D   Gujarat High G,ourt are directed against the judgment of the High
    Court disposing of three wealth-tax References.

        Tht three trust deeds were executed by NarottamLalbhai for the
  benefit of the assessee, his wife and his children and,grnnd children.
  The deed dated March 19~ 1955 created a trust known as the Arvind
E N arottam Trust. The deed dated April 9, 1955 cre'ated a trust called
  the Arvind Family Trust. And the deed dated March 18, 1961 created
  a trust described as the Arvind Kalyan Trust. All the three trust deeds
  are couched in identical terms, except in regard to the minimum
  amounts payable to the beneficiaries out of the income of each year.
  There was one further difference in detail. The first two deeds
F specified a period of 18 years from the date of execution as the period
  during which the net income could be distributed to the assessee, his
  wife and children, while the third specified a period of 30 years. The
  minimum annual payments to be made under the three trust deeds to
  the assessee by way of maintenance w_ere Rs. 250, Rs.150 and Rs.250
  respectively. Under each of the trust deeds the settlor specified the
G interest of the beneficiaries in the trusts. The pertinent terms of one of
  them, the Arvind Narottam Trust Deed, may be set forth here.
  Clauses 7 and 8 of that Trust Deed provide:

                "7(a) Whatever income by way of interest or otherwise is
                received each year by the trustees from the trust fund
                should be first applied in-meeting with the expenses of the
COMMR. OF WEALTH TAX v. A. NAROTTAM !PATHAK, CJ.]                     269

         management of the trust and the payment of taxes thereof.
                                                                              A
         For a period of 18 years hereafter, the trustees may pay to
         Arvind or if Arvind gets married during the period to
         Arvind, his wifo and children or to one or more of these
         persons, such portion of1he net income remaining there-
         after as the .trustees deem fit. However, the trustee• shall
         pay to Arvind, or if Arvind gets married during the period           B
         to each Arvind and his wife, at least Rs.150 every year.
         After such distribution, if there remains any surplus from
         the income of any year, it shall be added to the corpus of
         the fund. if in any year the net income accuring to the fund
         is less than Rs.300 the whole" amount shout.ct be paid to
         Arvind and if Arvind gets married during the period w
         Arvind· and his wife in equal shares. If Arvind expires              c
         during the period of 18 year.s hereafter. or if Arvind gets
         married during the Reriod and both Arvind and his wife
         expire, the whole·of the net income of the trust fund should
         be added.to the corpus for a period of 18 years hereafter.
                                                                              D
                  (b) Whatever may.be the corpus and the accumula-
          ted balance remaining undistributed out of the income of
          each year, shall be paid (as capital) at the end of 18 years
          hereafter to Arvind, his wife and his children or survivor or
          such of them in such .proportion as the trustees peem fit. If
          the trustees are not able to decide upon the persons to             E
          whom or the proportion in. which the-Said corpus and ac-
          cumulated balance of income is to be distributed ot it is not
          possible legally to give effect to the decision of trustees or it
          is'Jllegal to do so, then the proportion in which the distribu-
         ·tion will be made will be. an equal share for each of the
         persons or survivors comprising of Arvind, his wife and'his          F
         children. If none of the said persons are alive at the time of
          distribution then the distribution will be made to Niranjan,
          his wife and children. or survivors, all or such of them and in
          such proportion as the trustees deem fit. If none of the said
          persons are alive at the time of distribution then the corpus
         _and the balance of income will be given over by the trustees        G
         on such conditions as they deem fit as donation to the
         Gujarat University or any other educational institution or
         an institution giving medical aid or attending to the health
         of public in general.

         8. If the trustees so think fit the trustees are hereby              H
    270         SUP\UJME COURT REPORTS                 [1988] Supp. 2 S.C.R.

                authorised to distribute as capital even before the expiry of
A
                18 years whatever property and income is at the particular
                time accumulated in the trw;t fund to Arvind, his wife an~
                his ~hildren or survivor or such of them in such proportion
                as the trustees deem fit. If the trustees are not able to
                decide upon the persons to whom or the proportion in
B               which the said corpus and.accumulated balance of income
                is lo be distributed or it is n0:t possible legally to give effect
                to the decision of trustees ot it is illegal to do so, then the
                proportion in which the dist11ibution will be made will be an
                equal share for each of the j)ersons or survivors comprising
                of Arvind, his wife and his children. If none of the seid .·
                persons are alive, at the time of distribution then the dis-
c               lribution will be made to Niranjan, his wife and his children
                or survivors, all or such of them and in such proportion as
                the trustees deem fit. If none of the said persons are alive at
                the time of distribution, then the corpus and the baliince of
                income will be given over by the trustees on such condi-
D               tions as they deem fit as donation to the Gujarat University
                or any other educational institution or an institution giving
                medical aid or attending to the health of public jn general.
                But if Arvind and his wife are the trustees at that time then
                they have no right to give vote in the above matter. But if
                the other trustees unanimously agree to allow them to vote
E               then they can."

           The Wealth Tax Officer made assessment orders for the assess-
    ment years 1962-63, 1963-64 and 1964-65 under the Wealth Tax Act,
    the relevant valuation dates being December 31, 1961, December 31,
    1962 and December 31, 1963. He assessed the assessee under sub-s. (2)
F   of s. 21 of the Wealth Tax Act on the entire value of the assets held by
    the trusts. On appeal the Appellate Assistant Commissioner confined
    the liability of the assessee to wealth tax on the capitalised value of the
    minimum amounts payable under the trust deeds for hi~ maintenance,
    that is to say say Rs.250, Rs·.150 and Rs.250 respectively per year. The
    Appellate Tribunal, on second appeal, affirmed the vie),v taken by'the
G   Appellate Assistant Commissioner. At the instance of the Revenue,
    the three cases were carried in reference·· to the High- t;:ourt for its
    opinion in each case on the following question of law:

                "Whether, on the facts and in the circumstances of the
                case, the finding that it is only the capitalised va.lue of the
H               interest of the assessee that has to be included in the net
COMMR. OF WEALTH TAX v. A. NAROTTAM [PATHAK, CJ.)                   271

           wealth of the assessee is in law justified?"                    A
      The High Court answered the question in each case in the
affirmative, in favour of the assessee and against the Revenue. And
now these appeals.

      Admittedly, on ali relevant dates of these assessment years, the B
assessee was a bachelor, and was alone entitled therefor to the benefit ·
of the three trusts. It is accepted also that the trusts are discretionary
trusts. The controversy between the parties arises on the application of
s. 21 of the Wealth Tax Act. Section 21, as it stood at the relevant time
provided:

           "S. 21. Assessment when assets are held by courts of wards,
                                                                           c
           administrators-general, ere.-       ·

           (1) In the case of assets chargeable to tax under this Act,.
           which are held by a court of wards or an administrat6r- ·
           general or an official trustee or any receiver or manager br D
           any other person, by whatever name called, appointed
           under a_ny order of a court to manage property on behalf of
           another, or any trustee appointed under a trust declared by
           a duly executed instrument in writing, whether testamen-
           tary or otherwise (including a _trustee under a valid deed of
           wakf), the wealth-tax shall be levied upon and recoverable E
           from the court of wards, administrator-general, official
           trustee, receiver, manager or trustee, as the case may be, in
           the like manner and to the same extent as it would be
           leviable upon and recoverable from the person on whose
           behalf (or for whose benefit) the assets are held, and the
           provisions of this Act shall apply accordingly.               F

                 (2) Nothing contained in sub-s. (1) shall prevent
           either the direct assessment of the'person on whose behalf
           (or for whose benefit) the assets above referred to are held,
           or the recove_ry from such person of the tax payable in
           respect of such assets.                                         G

                 (3) xx               xx              xx             xx

                  (4) Notwithstanding anything contained in (the
           foregoing provisions of) this section, where the shares of
           thepersons on whose-11ehalf or for whose benefit apy such       H
    272         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

A               assets are held are indeterminate or unKnown, the wealth-
                tax shall be levied upon and recovered from the court of
                wards, administrator-general; official trustee, receiver,
                manager, or other person aforesaid, (as the case may be, in
                the like manner and to the same extent as it would be
                Jeviable upon and recoverable from an individual who is a
B               citizen of India and resident in India) for the purpose of
                this Act.

           The contention of Dr. V. Gauri Shankar on behalf of the Re-
    venue is that the settlor had specifically made these three trusts for the
    benefit of his son, Arvind, the assesee, and has declared unequivocally
c   that the rettlement is for the benefit of the assessee, and on the asses-
    see's marriage, also for the ,benefit of his wife and children. It is urged
    that the High Court has erred in failing to collect the real intention of
    the settlor from the entire document and has erroneously confined
    itself to paragraph 7 of the deed. According to learned co.unsel, what
    the High Court should have done was to ascertain the state of affairs
D   existing on the relevant valuation date. It should not have been
    influenced by what could possibly happen in the indefinite future on
    the happening of certain contingencies. The submission.is that on· the
    valuation dates there was only one beneficiary, the assessee, his share·
    was determined and known, and it extended to the entire interest in·
    the trust properties. It is urged that in the case of a discretionary trust
E   the interes(of the beneficiary extends not only to the actual share paid
    to him but to his right to be considered as a potential recipient of the
    net income remaining after· defraying the management expenses .and
    paying the taxes. It extends, he says, to an interest in· .ihe Trust
    accumulation both before or after the expiry of the stipulated perio,d
    when the Trustees are empowered to distribute the accumulated
F   balance as capital. Learned counsel urges that the whole deed of set-
    tlement in each.case should he' read and understood comprehensively
    and only thereupon can a true answer be returned to the question
    framed in the reference. Considerable emphasis has been placed on
    the submission that the capital value of the contingent interest 'in the
    entire property must be kept in view. I have no difficulty in accepting
G    the submission of Dr. Gauri Shanker that for a proper understanding
    of a case before us we must consider the entire .deed of settlement.
    That, however; does not lead io the conclusion which ·learned counsel
    wishes us to accept. What is the interest of the assessee under the deed
    of settlement on the relevant valuation date? We are concerned wiih
    the capital value· of that interest. It is apparent that the assessee was
H   entitled ohly to the minimum prescribed iii each of the deeds of settle-
    COMMR. OF WEALTH TAX v. A. NAROTTAM [PATHAK, Ci.I                    273

    ment. Whether or not be received any further amount out of the net
                                                                                 A
    income of the Trust Fund was left entirely in the discretion of the
    Trustees. There was no right in the assessee to any portion of the net
    income in excess of the minimum guaranteed to him. It is the minimum
    alone which he could claim as his property. So also, on the distribution
    of the accumulated balance as capital at the end of the stipulated
    period there was no right in him to receive any part thereo( It was          B
    o.pen to the Trustees to ignore h.im altogether.and they could pay it to
    such other members of the family as they chose.

          In support of the proposition that the expression 'property' is a
    term of the widest amplitude and'that every possible interest is includi-
    ble therein we are referred to Ahmed G.H. A riff and Others v. Com-
    missioner of Wealth-Tax, Calcutta, [1970] 76 I.T.R. 471. I have no           c
    doubt that the expression 'property' must bear a comprehensive im-
    port. The question remains whether what is conveyed under the three
    deeds of settlement to the assessee is a right to anything more than the
    prescribed minimum under each deed. I may reiterate that the interest
    extends to no more than that minimum.                                        D

            It is contended on behalf of the Revenue that the fact that a
     beneficiary may change on the happening of certain contingencies will
     not make the share of the beneficiary un-determined or unknown, and
     reliance has been placed on Padmavati Jaykrishna Trust & Another v. ·
     Commissioner of Wealth-Tax, Gujarat, [1966] 61 I.T.R. 66; Commis·           E
     sioner of Wealth-Tax, Bombay v. Trustees of Mrs. Hansbai Tribhu-
     wandas Trust, [1968] 68 I.T.R. 527; Commissioner of Wealth-Tax,
     A.P. v. Trustees of H.E.H. Nizam's Family (Remainder Wealth) Trust,
     [1977] 108 I.T.R. 555 and Commissioner of Wealth-Tax, A.P. v.
     Trustees of H.E.H. The Nizam's Sahebzadi Anwar Begum Trust,
     [ 1981] 129 I. T .R. 796. These cases can be of no assistance to us, for,   F
    unlike the facts in each of those cases, the instant case is one where
    beyond the specified minimum the assessee was not entitled to any-
    thing more:·rhere must be a right, present or contingent, before it,oan
     be said that an assessee has an interest, and I am supported in this by
    what was said by the House of Lords in Gartside & Anr. v. Inland
    Revenue Commissioners, LR 1968 Appeal Cases 553 where it was also            G
    observed that a mere right to be considered for distribution of the
    income or of the corpus of the Trust Fund cannot be regarded as an
    'interest' since it was not capable of valuation. Dr. Gauri Shanket\
.   relies on Leedale (Inspector of Taxes) v. Lewis., [1982] 3 All E.R. 808 .
    _But the decision in that case turned on the principle language of the
    English Statute, where an approximation of the _value is permitted by        H
    274         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

A   the ·"just and reasonable" clause and by the words "as near as may be"
    in S. 42(2) of the Finance Act.

          It is vehemently urged by Dr. Gauri Shanker that the approach
  to be adopted in this case is not that which finds favour under the
  Income-tax law, and different considerations prevail under the Wealth
B Tax Act. As I am proceeding on the basis of the true construction of
  the Deeds of Settlement, I fail to see any substance in that contention.
  Reliance wa' also placed by learned counsel for the Revenue on
  McDowell and Co. Ltd. v. Commercial Tax Officer, [1985] 154 I.T.R.
  148. That decision cannot advance the case of the Revenue because
  the language of the deeds of settlement is plain and admits of no
C ambiguity.

          In the result :L endorse the view taken by the High Court and
    dismiss these appeals with costs.

          SABYASACHI MUKHARJI, J. l agree with the judgment of the
D   learned Chief Justice. There is, however, one aspect of the matter on
    which some arguments were advanced at the time of hearing of this
    case, to which I would like to advert.

          Dr. V. Gauri Shankar appearing on behalf of the revenue made
    an appeal before us stating that we should really construe the three
E   Trust-Deeds together and see 'the game of the hidden purpose' behind
    these Trust-Deeds whieh were, in fact, for the sole and exclusive
    benefit of the assessee. He drew our attention to the observations of
    Justice Chinnappa Reddy, with which other learned Judges of the Full
    Bench agreed in McDowell & Co. Ltd. v. Commercial Tax Officer,
    [198S] 154 ITR 148. He invited us to hold that having regard to the taxing·
F   Statute the tax avoidance device should be exposed. Justice Chin-
    nappa Reddy has noticed the change in judicial attitude to the tax
    avoidance devices. Justice Reddy mentioned that in the country of its
    birth the _principles of Westminister of condoning tax avoidance have
    been given a decent burial. In that very country the phrase 'tax-
    avoidance' is no longer condoned or looked upon with sympathy.
G
       It is true that tax avO'idance in an under-developed developing
  economy should not be encouraged on practical as well aS'ideological
  grounds. One would wish, as noted by Reddy, J. that one could get the
  enthusiasm of Justice Holmes that taxes are the price of civilization
  and one would like to pay that pric.e to buy civilization. But the ques-
H tion which many ordinary tax-payers very often in a ·country of
COMMR. OF WEALTH TAX v. A. NAROTTAM [MUKHARJI, J.)                    275

short1'ges with ostentious consumption and deprivation for the large         A
masses ask, is does he with truces buy civilization oi" ooes he facilitate
the wastes and ostentiousness of the few. Unless wastes and osten-
tiousness in Go11emment's spendings are avoided or eschewed, no
amount of moral sermons would change people's attitude to tax
avoidance.
                                                                             B
      In any event, however, where the true effect on the construction
of the Deeds is clear, as in this case, the appeal to discourage tax
avoidance is not a relevant consideration. But since it was made it has
to be noted and rejected. With these observations I agree.

H.L.C.                                                Appeals dismissed.     C