1974 (8) TMI 22

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....? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in accepting that the amount of Rs. 4 lakhs was in the nature of 'Quaraza-e-Hasana', particularly when the amount of Rs. 1,21,800 out of Rs. 4 lakhs has been repaid ?" The present reference, which governed four different cases before the Income-tax Appellate Tribunal, relates to the assessment years 1957-58, 1958-59 and 1960-61. The case is to the effect that the respondent, Abdul Hussain, orally gave an amount of Rs. 4,00,000 to one Faizullabhai some time before the year 1950. There was no written document in that behalf nor was it entered in the account books. There was no recovery made from Faizullabhai during the four assessment years. How....

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....s follows : " 2. (in) 'net wealth' means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than-- (i) debts which under section 6 are not to be taken into account ; (ii) debts which are secured on or which have been incurred in relation to any property in respect of which wealth-tax is not chargeable under this Act ; and (iii) the amount of the tax, penalty or interest payable in consequence of any order passed....

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....of the deceased without obtaining a succession certificate. Jenkins C.J. and Mookerjee J., who delivered separate concurring judgments, held that in order that a debt owed to the deceased may require succession certificate, it is necessary that the debt should be payable and that it must be recoverable. The clear implication was that it must not be by any provision of the statute. We may further advert to the pronouncement of their Lordships of the Supreme Court in Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealth-tax, wherein their Lordships laid down that for the purposes of section 2(m) of the Wealth-tax Act, 1957, the word "owe" would imply an obligation to pay and the words " debt owed " would mean liability to pay ....

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....ax Appellate Tribunal on this point. In this connection we might advert to the view expressed by the learned author, Tyabji, on Muslim Law, in the 4th edition, at pages 404 and 405 of his commentary: " It is clear that neither a hiba-bil-iwaz nor a hiba-bi-shartil-iwaz is complete without each side taking possession of the subjects of gift and return respectively. Each of these two transactions consists of two completed reciprocal donations : and each of the component donations requires transfer of possession for its completion. It would be difficult in India and Pakistan to prove such a hiba-bi-shartil-iwaz as would not be a contract : for it would mean proving that though the donor stipulated for a return at the time he was makin....