KAPOOR CHAND (DEAD)versusASSTT. COMMNR. OF INCOME TAX

                    [2015] 10 S.C.R. 871


                 KAPOOR CHAND (DEAD)                             A
                              v.
           ASSTT. COMMNR. OF INCOME TAX
               (Civil Appeal No. 67S of 2005)
                                                                 B
                       JULY 14, 2015
           [A.K. SIKRI AND N.V. RAMANA, JJ.]
      Income Tax Act, 1961 - s. 64(1) (iii), Explanation 2A -
Applicability of- Trust created for the benefit of minor children c
- The two trustees (including the assessee) became partners
in a partnership firm - Income arising to the Trust from the
membership of the trustees in the firm - Whether taxable u/
s. 64(1) (iii) - Held: The income of a minor child is taxable at
the hands of individual - However, in the present case, the D
income has not accrued to the minors in the relevant
assessment year, in view of the stipulation in the Trust-deeds
that the income would be available to the minors on their
attaining majority- Thus assessee's income was not taxable
u/s. 64(1) (iii).                                                 E
     Allowing the appeal, the Court

     HELD: 1. It is clear from a plain reading of Section
64(1) (iii) of Income Tax Act, 1961 that while computing F
the total income of any individual, the income of a minor
child of such individual from the admission of the minor
to the benefits of partnership in a firm is to be included
as the income of the said individual. The Explanation
2A clarifies that if the minor child is a beneficiary under a G
trust, income arising to the trust from the membership
of the trustee in a firm shall also be treated as income of
th~ child and provisions of sub-clause (iii) of Section 64
(1) shall get attracted even in that eventuality. [Para 7]
[875-H; 876-A,B]                                              H
                             871
                                                 '

872         SUPREME COURT REPORTS              [2015] 108.C.R.


A       2. The provision that is contained in Explanation
  2A is only to take care of the income, even when a trust
  is created. It does not go further and make any provision
  to the effect that even when the income earned by the
  trust cannot be utilized tor the benefit of the minor during
B his minority the Explanation 2A shall be attracted. There
  is no such stipulation even in the said Explanation.
  Moreover, the language of Section 64 (1) (iii) is clear and
  categorical which makes the income of minor child
  taxable at the hands of individual. [Para 12] [879-B-D]
c
           3. The income which is not to be given or spent for
      the benefit of the child so long as he is minor, his income
      cannot be treated as income of a "minor child" and taxed
      at the hands of individual. [Para 9] [877-E-F]
D
           Commissioner of Income Tax vs. M.R. Doshi
           (211) ITR 1 (SC)- relied on.

           Yogindraprasad N. Mafatlal vs. Commissioner of
E          Income Tax, Bombay City-1109 ITR 602(Bom)-
           referred to.

       4. In the present case one of the conditions
  contained in the trust deeds was that the income so
F generated by the trust, shall not be given to or spent for
  the benefit of the minor children till they attain majority
  and the money was to be handed over to them only on
  attaining the majority which would mean that the income
  was available to these persons when they cease to be
G the minors. Thus, the requirement that the share of
  income is at the hands of minor child is not satisfied in
  the present case. [Paras 8 and 12] [876-E-F; 879-D]
       5. The Department is not remedyless inasmuch as
H the income earned by the two minors would not go
    KAPOOR CHAND (DEAD) v.ASST. COMMNR. OF                       873
                 INCOME TAX

untaxed. On attaining majority, when the aforesaid A
money in the form of income is received by the two
individuals, it would be open to the Department to tax
the income at that time. Or else, the Department could
take up their cases under Section 166 of the Act if
permissible. However, that course of action was not · B
taken by the Department in the present case. [Para 13]
[879-E-F]

                    Case Law Reference
                                                                  c
(211) ITR 1 (SC)             relied on                 para 8

109 ITR 602(8oM)             referred to               para 8

    CIVILAPPELLATE JURISDICTION: Civil Appeal No. 675
of2005                                                            D

    From the Judgment and Order dated 24.10.2003 of High
Court of Uttaranchal at Nainital in Income Tax Appeal No. 01
of2003.
                                                                  E
    Rohit Sthalekar, Avi Tandon, Kamlendra Mishra for the
Appellant.

     Arijit Prasad, Anil Katiyar for the Respondent.

     The Judgment of the Court was delivered by                   F

     A. K. SIKRI, J. 1. The facts in brief, which give rise to the
present appeal filed by the assessee against. the impugned
judgment dated 24.10.2003 passed by the High Court of
Uttaranchal at Nainital, are as under:                             G

    2. The brother-in-law of the appellant, namely, Shri Ram
Niwas Agarwal had created two trusts for the benefit of two
minor children of the appellant, Kapoor Chand. One trust
known as Priti Life Trust was for the benefit of Km. Priti who    H
874         SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A     was aged about 7 years and the other trust was created in the
      name of Anuj Family Trust for the benefit of master Anuj, minor
      son of the appellant, Kapoor Chand.

   Both these trustees became partners in the partnership firm.
B ·The said partnership firm earned profits in the year 1980-1981
   with which we are concerned in the present appeal and share
   of the two trusts was given to them.

            3. Since these trusts were for the benefit of two minor
c     children of the appellant, invoking the provisions of Section
      64(1)(iii) of Income Tax Act, 1961 (for short "the Act), the
      Assessing Officer included the said income in the income of
      the assessee and taxed as such.

D      4. The appellant contested the assessment by filing
  appeal before the Commissioner of Income Tax (Appeals).
  The CIT (Appeals) allowed the appeal by order dated
  30.01.1996 holding that since the minors had no right to receive
  the income of the trusts till the time they were minors, the
E provisions of Section 64(1 )(iii) read with Explanation 2A of
  the Act would not be attracted. It would be relevant to mention
  here that one of the important terms of both the trust deeds
  was that income so earned by the trusts shall not be received
  by two minors during their minority and will be spent for their
F benefits only once they attain the majority. Another fundamental
  clause in both the trust deeds was that in case any of the
  beneficiaries dies before attaining majority, his/her share would
  be given to the other sibling.

G       5. The Department challenged the aforesaid order of the
  CIT (Appeals) before the Income Tax Appellate Tribunal, New
  Delhi (for short "the Tribunal"). The Tribunal allowed the appeal
  and set aside the order of the CIT (Appeals). Dis-satisfied
  with the outcome, the appellant approached the High Court of
H Uttaranchal by way of an appeal filed under Section 260A of
    KAPOOR CHAND (DEAD) v. ASST. COMMNR. OF                         875
            INCOME TAX [A.K.SIKRI, J.]

the Act which appeal has been dismissed by the High Court           A
vide impugned judgment dated 24.10.2003 affirming the order
of the Tribunal. Undeterred, the appellant approached this
Court by filing special leave petition and leave was granted.
This is how the present appeal has come up for final hearing.
                                                                    B
      6. Before we take note of the contention advanced by
the learned counsel for the appellant challenging the
correctness of the impugned judgment, it would be apposite
to reproduce the relevant provisions of the Act. Section
64(1 )(iii) as well as Explanation 2A thereof read as under: C


     "64(1) In computing the total income of any individual, there
     shall be included all such income as arises directly or
     indirectly-                                                   D


     (i) ........ .

     (ii) ...... ..
                                                                    E
     (iii) to a minor child of such individual from the admission
     of the minor to the benefits of partnership in a firm:

     Explanation 2A- For the purposes of clause (iii),where
     the minor child of an individual is a beneficiary under a F
     trust, the income arising to the trustee from the
     membership of the trustee in a firm shall, to the extent
     such income is for the benefit of the minor child, be
     deemed to be income arising indirectly to the minor child
     from the admission of the minor to the benefits of G
     partnership in a firm."

     7. It is clear from a plain reading of the aforesaid Section
that while computing the total income of any individual the
income of a minor child of such individual from the admission       H
876         SUPREME COURT REPORTS                   [2015] 1OS.C.R.


A     of the minor to the benefits of partnership in a firm is to be .
      included as the income of the said individual. The Explanation
      2A clarifies that if the minor child is a beneficiary under a trust.
      income arising to the trust from the membership of the trustee
      in a firm shall also be treated as income of the child and
B     provisions of sub-clause (iii) of Section 64(1) shall get attracted
      even in that eventuality.

            8. In the present case, as is clear from the facts narrated
      above, no doubt two minor children of the appellant were the
C     beneficiaries under the two trusts. It is also not in dispute that
      the said trustees were the partners in the firm and had their
      shares in the income as partners in the said firm. However,
      the entire controversy revolves around the question as to
      whether it could be treated as income of a "minor child". This
D     controversy has arisen because of the reason that the income
      that had been earned by the trustees was not available to the
      two minor children till attaining the age of majority. As pointed
      out above, this was one of the conditions contained in the trust
      deeds that the income so generated by the trust, shall not be
E     given to or spent for the benefit of the minor children till they
      attain majority and the money was to be handed over to them
      only on attaining the majority which would mean that the income
      was available to these persons when they cease to be the
 F    minors. This very question came up before this Court in almost
      identical circumstances in the case of Commissioner of
      Income-Tax vs. M.R. Doshi [(211) ITR 1 (SC)]. The Court, after
      taking note of some judgments of High Courts including the
      judgment of High Court of Bombay in Yogindraprasad N.
G     Mafatlal vs. Commissioner of Income-Tax. Bombay Citv-1 [109
      ITR 602 (Born.)] interpreted the provisions of Section 64(1 )(v)
      of the Act in the following manner:-

            "Section 64(1) (v) requires, in the computation of the total
            income of an assessee, the inclusion of such income as
H
   KAPOOR CHAND (DEAD) v. ASST. COMMNR. OF                          877
           INCOME TAX [A.K.SIKRI, J.]

     arises to the assessee from assets transferred, A
     otherwise than for adequate consideration, to the extent
     to which the income from such assets is for the
     immediate or deferred benefit of, inter alia, his minor
     children. The specific provision of the law, therefore, is
     that the immediate or deferred benefit should be for the B
     benefit of a minor child. Inasmuch as in this case the
     deferment of the benefit :s beyond the period of minority
     of the assessee's three sons, since the assets are to be
     received by them when they attain majority, the provisions
     of Section 64( 1)(v) have no application."                 C

      9. Since the judgment of the Bombay High Court in
Yogindraprasad N. Mafatlal (supra) has been affirmed by this
Court, on going through the said judgment of High Court of
Bombay we find that there is a very detailed discussion while D
interpreting the provision mentioned therein. In this case, the
Bench comprising Tulzapurkar and Desai, JJ. (as their
Lordships then were) wrote separate but concurring opinion.
Justice Desai in his opinion gave three reasons for coming
to the conclusion that the income which is not to be given or E
spent for the benefit of the child so long as he is minor, his
income cannot be treated as income of a "minor child" and
taxed at the hands of individual. These reasons can be
summarized as below:
                                                                    F
     "(i) The benefit which may be immediate or deferred must
     still be a benefit of the minor child. In view of the fact
     that the said expression is still retained in the relevant
     provisions it is not possible to accept the argument that
     the "deferment" can be beyond the minority of the child. G
     If the enjoyment of the benefit is postponed beyond the
     minority of the child it cannot be fairly regarded and
     accepted as a benefit even deferred for the minor child.

     (ii) In order to attract the provision, the minor child must   H
878         SUPREME COURT REPORTS ·                  [2015] 10 S.C.R.


A          have a direct benefit of the interest in the income and the
           assets transferred to the trustees. Where the trust
           contains a stipulation that the income is to be
           accumulated or added to the corpus it cannot be held
           that the child has any direct benefit in that income.
B
           (iii) Benefit, if any, receivable by the child must be certain
           and vested. It cannot be the mere possibility of a benefit
           or benefit available on the fulfillment of a contingency."

C           10. In the present case, as pointed out above, specific
      stipulation which is contained in both the trust deeds is that in
      case of demise of any of.the minor the income would accrue
      to the other child. Therefore, the receipt of the said income is
      also contingent upon the aforesaid eventuality and the two
o     minors had not received the benefit immediately for the
      assessment year in question viz. as "minor" children.

          11. Learned counsel appearing for the respondent
    submitted that the aforesaid stipulation in the trust deeds is
E devised mainly to have the income escaped in the hands of
    the individuals and it was precisely the reason because of
    which Explanation 2Awas inserted by the Finance Act, 1979.
    In support, he has produced memo corresponding the
    provision in the Finance Bill, 1979 and referred to para 55
F · thereof which reads as under:-

           "55. Under another existing provision, the income rising
           to a minor child from admission to the benefits of
           partnership is included in the income of that parent who
           has higher income, although neither of the parents is a
G
           partner in the firm to the benefits of which the minor is
           admitted. With a view to countering a device for
           circumventing this provision through interpolation of a trust,
           it is proposed to provide that where a minor child of an
H          individual is a beneficiary under a trust and the rustee
     KAPOOR CHAND (DEAD) v. ASST. COMMNR. OF                         879
             INCOME TAX [A.K.SIKRI, J.]

      joins in any partnership business with any person, the A
      income arising to the trust, to the extent it is for the benefit
      of the minor child, will be included in the total income of
      that parent who has the higher income."

      12. We are afraid the aforesaid explanation does not help 8
the Department. The provision that is contained in Explanation
2A is only to take care of the income even when a trust is
created. It does not go further and make any prov_ision to the
effect that even when the income earned by the trust cannot
be utilised for the benefit of the minor during his minority the     c
Explanation 2A shall be attracted. We do not find any stipulation
even in the said Explanation.Moreover, the language of Section
64(1 )(iii) is clear and categorical which makes the income of
minor chi!d taxable at the hands of individual. Thus, in the first
instance it has to be shown that the share of income is at the D
hands of minor child which requirement is not satisfied in the
present case.

      13. We may add that the Department is not remedyless
inasmuch as the income earned by the two minors would not            E
go untaxed. On attaining majority when the aforesaid money
in the form of income is received by the two individuals it would
be open to the Department to tax the income at that time. Or
else, the Department could take up their cases under Section
166 of the Act if permissible. However, that course of. action       F
was not taken by the Department in the present case.

       14. In view of the aforegoing conclusions we are of the
view that the impugned judgment dated 24.10.2003 of the High
Court does not lay down the correct proposition of law. This G
civil appeal is accordingly allowed and the impugned judgment
dated 24.10.2003 passed by the High Court is set aside.

Kalpana K. Tripathy                                Appeal allowed.

                                                                     H