THE COMMISSIONER OF INCOME-TAX, BOMBAY CITY II versus SHRI SITALDAS TIRATHDAS

Citation: [1961] 2 S.C.R. 634 · Decided: 24-11-1960 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

November ~4· 
634 
SUPREME COURT REPORTS 
[1961] 
THE COMMISSIONER OF INCOME-TAX, 
BOMBAY CITY II 
v. 
SHRI SITALDAS TIRATHDAS 
(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.) 
Income-fax-Maintenance payable to wife and children under 
decree-Whether deductible from total income. 
A consent decree was passed against the assessee a warding 
maintenance to his wife and children. The decree did not create 
any charge upon the income of the assessee. The assessee 
claimed in the assessment of income tax deduction of the am-
ount paid under the decree from his total income. 
Held, that the assessee was not entitled to the deduction. 
Where by the obligation income was diverted by an overriding 
title before it reached the assessee, it was deductible; but where 
the income was required to be. applied to discharge an obligation 
after such income reached the assessee, it was not deductible. 
The true test was whether the amount sought to be deducted, 
in truth, never reached the assessee as his income. In the pre-
sent case, the wife and children of the assessee received a por-
tion of the income of the assessee, after the assessee had receiv-
ed the income as his own. 
Bejoy Singh Dudhuria v. Commissioner of Income-tax, (1933) l 
I.T.R. 135, not applicable. 
P. C. Mullick v. Commissioner of Income"tax, Bengal, (r938) 
6 I.T.R. 206, applied. 
Diwan Kishen Kishore v. Commissioner of Income-tax, (1933) 
l I.T.R. 143· Seth Motilal Menekchand v. Commissioner of Income-
tax, (r957) 31 I.T.R. 735, Prince Khanderao Gaekwar v. Commis-
sioner of Income-tax, (1948) r6 I.T.R. 294, Commissioner of In-
come-tax, Bombay v. Makanji Lalji, (r937) 5 I.T.R. 539, Commis-
sioner of Income-tax, Bombay v. D. R. Naik, (1939) 7 I.T.R. 362, 
D. C. Aich, In re, (1940) 9 I.T.R. 236, Hira Lal, Inre, (1945) r3 
I.T.R. 512 and V. M. Raghavalu Naidu 6- Sons v. Commissioner 
of Income-tax. (1950) 18 I. T.R. 787, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
528of1959. 
Appeal from the judgment and order dated Septem-
ber 20, 1957, of the former Bombay High Court in 
I.T.R. No. 15 of 1957. 
Hardayal Hardy and D. Gupta, for the appellant. 
R. J. Kolah, S. N. Andley, J. B. Dadachanji, Ra-
muhwar Nath and P. L. Vohra, for the respondent. 
2 S.C.R. SUPREME COURT REPORTS 
635 
1960. November 24. The Judgment of the Court 
was delivered by 
HrDAYATULLAH, J.-The Commissioner of Income-
tax, Bombay City II, has filed this appeal with a certi-
ficate under s. 66A(2) of the Income-tax Act, against 
the judgment and order of the High Court of Bombay 
dated September 20, 1957, in Income-tax Reference 
No. 15 of 1957. 
The question referred to the High Court; for its 
opinion by the Income-tax Appellate Tribunal, Bom-
bay was: 
"Whether the assessee is entitled to a deduction 
of Rs. 1,350 and Rs. 18,000 from his total income of 
the previous year relevant to the assessment years, 
1953-54, 1954-55?" 
The assessee, Sitaldas Tirathdas of Bombay, has 
many sources of income, chief among them being pro-
perty, stocks and shares, bank deposits and share in a 
firm known as Messrs. Sitaldas Tirathdas. He follows 
the financial year ab his accounting year. For the 
assessment years 1953-54 and 1954-55, his total income 
was respectively computed at Rs. 50,375 and Rs. 55,160. 
This computation was not disputed by him, but he 
sought to deduct therefrom a sum of Rs. 1,350 in the 
first assessment year and a sum of Rs. 18,000 in the 
second assessment year on the ground that under a 
decree he was required to pay these sums as main-
tenance to his wife, Bai Deviben and his children. 
The suit was filed in the Bombay High Court (Suit 
No. 102 of 1951) for maintenance allowance, separate 
residence and marriage expenses for the daughters 
and for arrears of maintenance, etc. 
A decree by 
consent was passed on March 11, 1953, and mainte-
nance allowance of Rs. 1,500 per month was decreed 
against him. For the account year ending March 31, 
1953 only one payment was made, and deducting 
Rs. 150 per month as the rent for the flat occupied by 
his wife and children, the amount paid as mainte-
nance under the decree came to Rs. 1,350. For the 
second year, the maintenance at Rs. 1,500 per month 
came to Rs. 18,000 which was claimed as a deduction. 
The Commissioner 
of Income-ta:<, 
Bombay City II 
v. 
Shri Silaldas 
Tirathdas 
H idayatullah J. 
636 
SUPREME COURT REPORTS 
(1961] 
196o 
No Gharge on the property was created, and the 
-. . 
matter does not fall to b

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