1981 PTD 124

MIAN AZIZ S. SHEIKH Versus COMMISSIONER OF INCOME-TAX, INVESTIGATION, LAHORE

Citation1981 PTD 124

CourtSupreme Court of Pakistan

Judge(s)Dorab Patel and Nasim Hassan Shah

ORDER

1. NASIM HASAN SHAH, J. ‑The facts of this matter briefly stated are that the petitioner was married in 1933 to Mst. Maqsood Begum and the Haq Mehr (dower) was fixed at Rs.

32. In the year 1958, however; the Haq Mehr (dower) was allegedly increased to Rs. 10,03,000 to comply with the wife's demand for increase of the dower commensurate with her status. Payment of the increased dower was effected by the assessee petitioner by transferring shares of the face value of Rs. 6;40,600 to the wife in 1959‑60. During the year ended 30th of June, 1960, a dividend of Rs. 43,527 was received on these ' shares by the said Mst. Masooda Begum. The Income‑tax Officer included this sum in the income of the assessee‑petitioner on the ground that the transfer of shares was not for adequate considera tion within the meaning of section 16(3)(a)(iii) of the Income‑tax Act. On appeal, the Tribunal confirmed the Income‑tax Officer's finding and dismissed his appeal.

2. The disputed amount of Rs. 43,527 is the dividened income which arose from the shares allotted to the wife as a result of their transfer by the petitioner in her favour. The contention raised before the assessing officer was that the dower had been increased in accordance with law and transfer of shares was towards part‑payment of the dower so increased. The only documentary evidence in support of this increase in the dower amount were two affidavits; one by the assessee/petitioner and the other by his wife. The Tribunal found that the only evidence in the case consisted of the two aforementioned affidavits which were prepared and filed as late as in 1964 although the increase was allegedly made on 1958. The absence of any contemporaneous evidence on the record was considered to cast doubts on the authority of the claim set up on the basis of the exception provided in clause (iii) of section 16(a) of the Income‑tax Act. The finding of the assessing officer that the transfer of shares made to the wife was not for adequate consideration was thus endorsed by the Tribunal which approved of adding the dividend income in dispute with that of the income of the assessee petitioner.

3. The High Court agreeing with this view further observed that the Tribunal did not accept the two affidavits presented by the assessee and his wife as sufficient evidence in support of the averment that the amount of dower had been increased. This finding was a finding of fact and unless it was reversed the benefit of section 16(3)(iii) of the Income‑tax Act would not be available to the assessee. The question posed by the Income‑tax Appellate Tribunal "Whether the Tribunal was right in holding that the sum of Rs. 50,072 was properly included in the income of the assessee under section 16(3)(a)(iii) of the Income‑tax Act?" was, therefore, answered in the affirmative by the High Court.

4. Mr. Javed Hashmi on behalf of the petitioner argued that the findings recorded by the Appellate Tribunal and upheld by the Lahore High Court require reconsideration. According to learned counsel, it is not a requirement in a Muslim Marriage to fix or refix the dower in the presence of the witnesses. In case of dispute between the spouses over matters concerning a Muslim marriage, which is similar to a civil contract, the matter in controversy must be settled on the basis of evidence which may not necessarily be in writing. This matter could, therefore, be re solved on basis of the two affidavits filed by the husband and wife concern ed and it was not necessary to produce any contemporaneous evidence It is submitted that the case involves the interpretation of sections 16(3)(iii, and 66(1) of the Income‑tax Act, 1922 and the principles of Muhammadan Law relevant to the increase in the dower of Muslim Female. The question raised is of general public importance and requires an authoritative pronouncement of this Court. Leave is, accordingly granted.

5. Security in the sum of Rs. 2,003. The appeal to be made ready on the present record with leave to the parties to add any further documents which they may so desire, subject to all just exceptions:

6. Leave granted.