Sankar Prasad Mitra, J.
1. In this reference under Section 66(1) of the Indian Income-tax Act, 1922, the assessment years involved are 1953-54 and 1954-55. The corresponding previous years were the financial years ending on the 31st March, 1953, and the 31st March, 1954, respectively. The assessee is the managing director of Messrs. Hotels (1938) Ltd. and other associated companies controlling a number of hotels in India. The assessee showed the income of Rs. 66,694 and Rs. 87,570 for the said two financial years respectively as gross dividends derived from certain shares he had held. The particulars of these shares are as follows :
1. Associated Hotels of India Ltd. ... 1,09,606 shares2. Northern India Caterers Ltd. ... 20 shares3. Oberoi Hotels (I) Ltd. ... 10 shares
2. The Income-tax Officer found that besides these shares, the assessec'swife and two sons held certain shares of the Associated Hotels of India Ltdand the Northern India Caterers Ltd. and he included the gross dividendsthereof for the year 1953-54 and the net dividends thereof for the year 1954-55in the total income of the assessee. The particulars of these shares are asunder :
YearName of shareholders Gross Dividend
1953-54 Rs. 1.Smt I D. Oberoi, wife of the assessee: (a)15,886 shares of Associated Hotels (I) Ltd....3,971.00 (b)30 shares of Northern India Caterers Ltd....15,273.00 2.Mr. T. R. Oberoi, son of the assesses: (a)50 shares of Northern India Caterers Ltd....25,454.00 (b)6,823 shares of Associated Hotels (I) Ltd...1,706.00 3.Mr. P.R.S. Oberoi, son of the assessee : (a)Northern India Caterers Ltd. (20 shares)...10,182.00
YearName of shareholders Net Divident
1954-55 Rs. Smt. I. D. Oberoi...15,886 shares of Associated Hotels...3,177.00 30 shares of Northern India Caterers Ltd....10,500.00 Sri T. R. Oberoi...50 shares of Northern India Caterers Ltd....17,500.00 6,823 shares of Associated Hotels of India Ltd....1,365.00 Sri P.R.S. Oberoi...20 shares of Northern India Caterers Ltd....7,000.00
3. The Income-tax Officer has held that the wife and the two sons are the assessee's benamidars. He has stated as follows :
' It is seen from the past records that...... shares standing in the namesof the assessee's wife, Smt. I. D. Oberoi, and the assessee's two sons, namely, Mr. P. R. S. Oberoi and Mr. T. R. Oberoi do in fact belong to the assessee and are hts own investments. The facts have also been admitted by the assessee before the department in the past years. The income from these shares is, therefore, to be rightly included in the hands of the assessee and assessed accordingly.'
4. The Appellate Assistant Commissioner, 'C' Range, gave his decisions against the assessees. He followed the Appellate Assistant Commissioner, ' H ' Range, who dealt with the assessee's appeal for the assessment year 1952-53 and had relied on certain findings of the Income-tax Investigation Commission to which the assessee's affairs had been referred. The Commission by its report made on the 30th May, 1952, had found that the assessee owned 78,650 ordinary shares of the Associated Hotels of India Ltd. in his own name, 15,885 shares in the name of his wife, 6,823 shares in the name of T. R. Oberoi, and 5,000 shares in the name of his daughter, Rajarani Kapur, out of a total of two lakhs of ordinary shares of this company, issued and paid up as on the 31st March, 1947. The Commission, in its report, had mentioned a letter from the assessee wherein the assessee admitted, (a) that in making the statement of wealth, he had taken into account all the assets of which he and other members of his family were the owners, and (b) that the undisclosed income was invested mainly in the shares of the Associated Hotels of India Ltd. The Income-tax Investigation Commission ultimately held that these shares were acquired out of the suppressed income of the assessee. The said Appellate Assistant Commissioner, ' H ' Range, in these premises, came to the conclusion that the assessee was the real owner of the shares while his wife and sons were his benamidars,
5. Before the Tribunal the assessee contended that the Income-tax Investigation Commission considered only the shares of the Associated Hotels of India Ltd., but the bulk of the dividend included, in the instant case, in the assessee's income was the dividend declared by the Northern India Caterers Ltd.
6. The assessee also contended that the finality of findings ot the Income-tax Investigation Commission was confined to the proceedings for particular assessment years under the provisions of Section 8(2) of the Income-tax Investigation Commission Act. The assessee contended further that assuming that the shares in question were acquired out of the assessee's secreted profits in 1943 as found by the Commission, Mrs. Oberoi and the two sons were the registered holders of these shares and the dividend income, therefore, could only be assessed in the hands of these registered holders. The Tribunal has considered the Supreme Court's judgment in Howrah Trading Co. Ltd. v. Commissioner of Income tax, : 36ITR215(SC) . and has observed that as the companies (that is, the Associated Hotels of India Ltd., and the Northern India Caterers Ltd.) could have paid dividends only to the registered shareholders, in the present case, the wife and the two sons could only be assessed on these dividends. The Tribunal has also observed :
' Further, the finding of the Commission relates only to the shares of the Associated Hotels of India Ltd. while the bulk of the dividend income are from shares of Northern India Caterers Ltd. for which there is no corresponding finding. As to whether the dividends received by Mrs. Oberoi could have been included in the appellant's total income under the provisions of Section 16(3), we express no opinion as no attempts have been made to make such inclusion. As some of these shares were acquired as early as 1943 and as Mrs. Oberoi and Mr. T. R. Oberoi and Mr. P.R.S. Oberoi are the registered holders, we hold that there was no justification for the inclusion of the dividends in the total income of the assessee. The assessments should, therefore, be reduced by Rs. 56,586 and Rs. 39,542 respectively.'
7. The following question of law has been referred to us :
' Whether, on the facts and in the circumstances of the case, the Tribunal was justified in excluding from the income of the assessee for the assessment years 1953-54 and 1954-55 the sums of Rs. 56,586 and Rs. 39,542, respectively which were the amounts of dividends received by the assessee's wife and two sons from shares acquired out of the profits of the assessee ?'
8. Before dealing with this question it would be necessary to examine how far the Supreme Court's decision in Howrah Trading Co.'s case affects the subject-matter of this dispute. In that case the Supreme Court has said that a person who has purchased shares in a company under a blank transfer and in whose name the shares have not been registered in the books of the company is not a 'shareholder' within the meaning of Section 18(5) of the Indian Income-tax Act, 1922. According to the Supreme Court such a person, notwithstanding his equitable right to the dividends on these shares, is not entitled to have the dividend income grossed up under Section 15(2) by the addition of the income-tax which the company has paid in respect of these shares and claim credit for the tax deducted at source, under Section 18(5) of the Act.
9. This decision of the Supreme Court does not mean that the real owner of shares can never be taxed. It means that the real owner, holding a blank transfer, is not entitled to grossing up under Section 16(2) and to claim the tax deducted at source under Section 18(5). The Supreme Court itself has cleared up the position by its decision in Kishanchand Lunidasing Bajaj v. Commissioner of Income-tax, : 60ITR500(SC) .. In this decision the Supreme Court has stated that the scheme of 'grossing up' is not susceptible to the interpretation that the income from dividend is to be regarded as the income only of the registered holder and not of the real owner of the shares. The Supreme Court has held in this case that where shares acquired with the funds of a Hindu undivided family were held in the name of a karta, the Hindu undivided family could be assessed to tax under the Indian Income-tax Act, 1922, on the dividends from those shares.
10. It seems, therefore, that the decision of the Supreme Court in the case of Howrah Trading Co. Ltd. is of no assistance in answering the question framed in this reference.
11. Mr. Debi Pal, learned counsel for the assessee, has urged before us that, in any event, the Tribunal has found that the wife and the two sons of the assessee were not the assessee's benamidars at all but were the real owners of the shares. The Tribunal has based its conclusion, says Mr. Debi Pal, on the following grounds :
1. The shares which the Income-tax Investigation Commission had considered were the shares of the Associated Hotels of India Ltd., but the bulk of the dividend included in the assessee's income, in the instant case, was dividend declared by the Northern India Caterers Ltd.
2. The shares might have been acquired out of the secreted profits of the appellant, but in the absence of any evidence that the shares remained in substance the assessee's properties, the dividends could not be included in the assessee's total income. (In other words, submits Mr. Debi Pal, the Tribunal does not accept that the shares remained in substance the properties of the assessee as in the case of Kiskanchand Lunidasing).
3. From the proceedings of the Investigation Commission it appears that in respect of some of the shares of the Associated Hotels of India Ltd., the appellant held blank transfers, but the shares standing in the names of the appellant's wife or his sons were not found to be in this category.
12. Learned counsel then points out that there is no finding about any alleged admission of ownership of the shares of the Northern India Caterers Ltd. either before the Investigation Commission or before the Tribunal. He relies also on Section 83 of the Trusts Act of 1802, which provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Learned counsel states that the money for purchase of the shares, in the instant reference, may have been paid by the assessee ; but there is no evidence that the assessee did not make the ] ayment for the benefit of his wife and his two sons. Reliance was placed on a judgment of the Patna High Court in Hazaribagh Mica Mining Co. Ltd. v. Ashalata Kapoor, : AIR1952Pat61 which we shall discuss later.
13. Now, the question referred to us is whether the Tribunal was justified in excluding from the assessee's income the amounts of dividends received by the assessee's wife and two sons from shares acquired out of the assessee's profits. In Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd. : 42ITR589(SC) the Supreme Court has observed :
' Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that Section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of Section 66(1) of the Act.'
14. The Supreme Court reiterated these principles in one of its recent decisions in Bhanji Bagawandas v. Commissioner of Income-tax : 67ITR18(SC) .
15. In the present reference, the question before the Tribunal was whether dividends arising out of shares acquired out of the assessee's secreted profits, but registered in the names of the assessee's wife and his two sons were to be assessed as the assessee's income. Within the framework of this question it is open to this court to consider all the different legal approaches to it from different standpoints.
16. Bearing these principles in mind, we have to examine the views aforesaid of the Tribunal to which Mr. Debi Pal has drawn our attention.
17. The observation of the Tribunal, in the instant reference, that the ' shares might have been acquired out of the secreted profits of the appellant but in the absence of any evidence that the shares remained, in substance, the property of the appellant, the dividend income could not be included in his total income' appears to be based on an erroneous approach in law. In Mst. Bilas Kanwar v. Desraj Ranjit Singh A.I.R. 1915 P.C. 96. the Judicial Committee has referred to its earlier decision in Dhurm Das Pandey v. Smt. Shama Soondri Dibiah,  3 M.I.A. 229 and Gopeekrist Gossain v. Gunga Persaud Gossain,  6 M.I.A. 53 and has laid down that where a purchase is made in the name of the wife, the natural inference is that the purchase is a benami transaction, a dealing common to Hindus and Mohammedans alike : it has a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of common law that where a feoffment is made without consideration the use results to the feoffor : the exception in English law by way of advancement in favour of wife or child does not apply to India, but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not; and the criterion in those cases in India is to consider from what source the money comes with which the purchase money is paid.
18. In our view the Tribunal should have applied these principles to the facts of this case. The assessee, in the instant reference, paid the money with which the shares were purchased. Secondly, the shares were purchased in the names of the assessee's wife and his two sons. In these premises, the natural inference was that the purchases were benami transactions and the burden was on the assessee or his wife and two sons to prove that it was not benami. But, this burden has not, in this reference, been discharged by any of the persons concerned.
19. The Patna High Court, applying the Judicial Committee's aforesaid decisions, has righty pointed out (if we may say so with great respect) in Satyadeo Prasad v. Smt. Chander Joti, : AIR1966Pat110 . that if the purchase is made in the name of wife or sons the presumption of Hindu law is in favour of its being a benami purchase and the burden of proof lies on the party in whose name it was purchased to prove that he was solely entitled to the legal and beneficial interest in such purchased estate. In this judgment the Patna High Court has also referred to its earlier decision in Hazaribagh Mica Mining Co. Ltd. v. Ashalata Kapoor, on which Mr. Debi Pal has relied. In the earlier judgment also, the Patna High Court said :
'......In the English law, a gift to a wife is presumed where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made in the joint names of both husband and wife. In India, the English law as to presumption of advancement has not been adopted......In thesecond place, the presumption of resulting trust may also be rebutted by parol or other evidence that the purchaser really wished to benefit those in whose names the conveyance of the legal estate was taken. '
20. Our point is that the Tribunal, in this reference, did not make the correct legal approach when it said that ' in the absence of any evidence that the shares remained in substance, the property of the appellant, the dividend income could not be included in his total income '. The Tribunal, it appears to us, has not adhered to the proposition that where property is proved to have been acquired with the assets of a husband or a father, the husband or the father, as the case may be, is presumed to be the beneficial owner of the property unless it is proved by the party alleging to the contrary that the intention at the time of purchase was to confer benefits on the wife or the son.
21. Secondly, the Tribunal, in its order, has said that it appears from theproceedings of the Investigation Commission that in respect of some of theshares of the Associated Hotels of India Ltd. the appellant held blank transfers :these were shares, for instance, in the name of a married daughter and thosestanding in the name of Clarke's Hotel Ltd. and several other individuals : but the2) : AIR1952Pat61 . shares standing in the names of the appellant's wife and his sons were not found to be in this category. This distinction which the Tribunal makes between shares of the Associated Hotels of India Ltd. with blank transfer deeds held by the assessee and shares without blank transfer deeds, does not load to any conclusion that assists us in deciding the present reference. Before the Income-tax Investigation Commission, the assessee, it appears, admitted that all the shares of the Associated Hotels of India Ltd. whether standing in the name of the assessee or in the name of his wife or son or daughter belonged to him : vide page 19, paragraph 3 of the paper book. He also admitted before the department in the past years that he was the owner of all the shares in question. But, the Tribunal has not dealt with this admission at all.
22. Thirdly, as we have already pointed out, the Tribunal was in error in applying the principles the Supreme Court has laid down in Howrah Trading Co.'s case to the facts of the instant reference.
23. For all these reasons, we are of opinion that the answer to the question in this reference must be in the negative. We would oint out, however, that it is the net dividend which the assessee had received during the financial years concerned that should be included in the assessee's income. The assessee will pay to the Commissioner the costs of this reference.
P. Chatterjee, J.
24. I agree.