Testamentary trust exclusion under Section 41(1) and limited reference jurisdiction under income-tax law.

The commentary explains that the proviso to Section 41(1) of the Indian Income-tax Act, 1922 was treated as applying only to trustees under an inter vivos trust deed, not to a testamentary trust created by will. The 1941 amendment expressly extending the provision to trusts declared by a duly executed instrument in writing, whether testamentary or otherwise, showed that the earlier wording did not cover such trusts, so the provision could not be applied retrospectively to an assessment already completed. It also notes that, on a reference under Section 66, the High Court's jurisdiction was confined to the precise question referred and it could not decide an additional unreferenced point of law.

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Issues: (i) Whether the proviso to Section 41(1) of the Indian Income-tax Act, 1922 applied to income of a testamentary trust created by will and assessed before the 1941 amendment took effect. (ii) Whether the High Court could entertain and decide a point of law not included in the reference made under Section 66 of the Indian Income-tax Act, 1922.

Issue (i): Whether the proviso to Section 41(1) of the Indian Income-tax Act, 1922 applied to income of a testamentary trust created by will and assessed before the 1941 amendment took effect.

Analysis: The beneficiaries of the trust were not mere abstractions. The idol, temple, dharmashala and sadavart were linked to persons in law, including a juridical person in the form of the idol and the class of persons benefiting from shelter and charity. The real question, however, was whether the amended language of Section 41(1), as introduced in 1939, covered trustees appointed under a duly executed trust deed so as to include a will. The statutory expression was read as referring to an inter vivos instrument, not a testamentary disposition. The later 1941 amendment expressly extended the provision to trusts declared by a duly executed instrument in writing, whether testamentary or otherwise, showing that the earlier wording did not include testamentary trusts. As the assessment had already been made before that amendment and it was not retrospective, the proviso could not be applied.

Conclusion: The proviso to Section 41(1) did not apply to the testamentary trust, and the income could not be charged at the maximum rate on that basis.

Issue (ii): Whether the High Court could entertain and decide a point of law not included in the reference made under Section 66 of the Indian Income-tax Act, 1922.

Analysis: The High Court's function on a reference under Section 66 was advisory and confined to the actual question referred. The powers under Section 66(5) did not authorise the Court to enlarge the reference and decide a new question merely because it arose from the record. Where the assessee had accepted the Tribunal's finding and had not sought reference of that point, the Court had no power to decide it. The proper modes for bringing a question before the Court were those prescribed by the Act and rules.

Conclusion: The unreferenced point of law could not be entertained or decided.

Final Conclusion: The reference was answered against the Revenue on the referred question, and the assessee succeeded on the applicability of Section 41(1) to the testamentary trust, while the additional unreferenced issue was declined for want of jurisdiction.

Ratio Decidendi: A proviso framed for trustees under a duly executed trust deed does not, before express amendment, extend to a testamentary trust; on a reference under the income-tax statute, the Court is confined to the precise question referred and cannot decide an unreferenced issue.

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