(Judgment of the Court was delivered by the Honourable the Chief Justice).
The firm of U. B. Dutt & Co., in which there was three partners, carried on business as general merchants in calicut. They also owned a cinema and a saw mill at Kallai and a rice mill at Ernakulam. In 1935 certain creditors applied, for the adjudication of the partners as inslovents under the Provincial Insolveny Act. This petition was not proceeded with because on the 14th December, 1935, an agreement was arrived at under which the debtors properties were to the conveyed to trustees for the benefit of their creditors. Accordingly the debtors assets were conveyed to three trustees with power to realize what was necessary and to pay the creditors proportionately out of the moneys that received. The trustees sold the cinema in the firms financial year which ended on the 30th June 1937. The general business was also sold, but they carried on the saw mill business which proved to be a profitable concern. The profits made from the saw mills were sufficient to pay in full all the creditors.
This cases deals with the assessment of the trustees for the year 1939-40. The trustees claimed that the creditors were the beneficiaries of the trust, but the Income-tax authorities held that the partners were. The trustees also claimed to be entitled under the provisions of Section 10 (2) (vi) to an allowance for depreciation of the assets which had been sold in the previous year, but this claim was also disallowed. In these circumstance the Commissioner of Income-tax referred to this Court for decision the following questions :
' (1) Whether under the provisions of the Act the assessment made on the trustees on behalf of the unregistered firm of Messrs. U. B. Dutt & Co. is correct in law.
(2) Whether under the provisions of the Act the unabsorbed depreciation of the general and cinema business discontinued prior to the year of account under review can be set off against the income of the saw mill business of the year of account which is the subject-matter of assessment? '
Section 41 (1) of the Act states that in the case of income, profits or gains chargeable under the Act which trustees appointed under a trust declared by a dully executed instrument in writing are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from the trustees in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf the income, profits or gains are receivable and all the provisions of the Act shall apply accordingly. There are two provisos to this sub section, but it is only necessary to refer to the first one which says that where the income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of the persons on whose behalf they are receivable are inderterminate or unknown, the tax shall be levied and recoverable at the maximum rate.
The deed of trust executed by the partners in U. B. Dutt & Co., was executed for the benefit of their creditors. The object of conveying their assets to the three trustees was solely to provide for the liquidation of their debts. The profits received by the trustees were to be distributed among the creditors and this is what has been done. The contention that the beneficiaries here were the debtors is one which has only to be stated to be rejected. The income was received by the trustees on behalf of the general body of creditors. The answer to the first question is in the negative which means that the tax should be levied on the trustees as trustees for the general body of creditors.
The answer to the second question must be in favour of the Income-tax authorities. Section 10 (2) (vi) cannot be read as giving the assessees the right to deduct an allowance for depreciation in a business which has ceased to exist. If the trustees had continued the cinema business, they would certainly have been entitled to an allowance; but, that business having ceased and the assets disposed of before the year of account, obviously they cannot ask for any allowance. Therefore the answer to the second question is also in the negative. As the assessees have succeeded in part and failed in part, we will make no order as to costs.
Reference answered in the negative.