Divan, C.J.
1. The first petitioner herein is an individual having a life interest in certain trusts. Petitioners 2A, 2B and 2C are the trustees of those trusts and the question arises regarding the assessment of the beneficiary, the first petitioner herein, for the purposes of wealth-tax and also the assessment of the trustees of the same trusts in which the first petitioner has a lief interest.
2. The short facts leading to this case may not be stated. The assessment years under consideration are assessment years 1961-62 to 1964-65. By a deed of settlement dated September 7, 1945, the father of the first petitioner settled certain shares of Indian companies upon trust for the benefit of the first petitioner and other beneficiaries. By another deed of settlement dated October 12, 1945, the father of the first petitioner settled shares of Uganda Cotton Company Ltd. upon trust for the benefit of the first petitioner and other beneficiaries. All the terms of the two deeds of settlement so far as is material for the purposes of this judgment are identical. Under clause 3(a) of the trust deed, the net income of the trust was to be paid till January 1, 1948, to the two sons of the settlor, Arvind N. Mafatlal and Yogindra N. Mafatlal, in equal shares absolutely at the end of every calendar year and under clause 3(b) from and after the first day of January, 1948, the whole of the residue of the net income of the trust fund is to be paid to the first petitioner during her life at the end of every calendar year absolutely. Sub-clauses (c) and (d) of clauses 3 of the trust deeds provide for the eventuality of the first petitioner dying childless. However, it is common ground between the parties that the first petitioner has got children and, therefore, the eventuality contemplated by clause 3(c) and clause 3(d) is not likely to arise. Under clause 3(e) an option is given to the first petitioner after she has attained the age of majority and after the birth of her first child to call upon the trustees to pay her a part of the corpus of the trust fund from time to time but in the aggregate she cannot receive more than one-half of the corpus of the trust fund by exercise of this option and the trustees are to be freed and discharged from the trusts and provisions of the trust deeds as soon as they hand over the corpus on such exercise of the option by the first petitioner. It is common ground that this option was exercised by the first petitioner. It is common ground that this option was exercised by the first petitioner by writing a letter of July, 1958, and one-half of the corpus of each of these two trusts has been paid to the first petitioner some time in the early part of 1959, either in February, 1959, The accounts of the income of the corpus of both the trusts are maintained in one set of books of account and for the purposes of account and taxation both the trusts are treated as a single unit. The first petitioner submitted the returns of net wealth for the assessment years 1961-62 to 1964-65 and at the time of assessment she had a specific and determinable share in the trust properties and her interest in the trust funds was not an asset within the meaning of section 2(e) of the Act but her interest in the trust funds was a right to an annuity which could not be included in the net wealth of the petitioner. We may state at this stage that this contention of the petitioner has now been decided finally by a decision of the Supreme Court in the case of this very petitioner in respect of these very trusts and, therefore, the exclusion sought for on the ground that her interest under the trust deeds was an annuity is not now available to her. The Wealth-tax Officer, the first respondent herein, considered the life interest of the petitioner to be determinable share and assessed the first petitioner to wealth-tax after including in her net wealth, the value of the life interest of the first petitioner in the trust funds. The assessment for the assessment year 1961-62 was finalised by the order dated April 19, 1965, and the assessment for the years 1962-63 to 1964-65 was finalised on May 1, 1965. Petitioners Nos. 2A, 2B and 2C in their capacity as trustees had also submitted returns of the net wealth of the trust funds for assessment years 1961-62 to 1964-65 in regard to the properties held by them under these two trust deeds. The first respondent, the Wealth-tax Officer, also finalised the assessment of the trusts for the said years. The trustees contended that the beneficiaries were known and the shares of the beneficiaries were determinate and known and hence the trustees should be assessed under section 21(1) of the Wealth-tax Act and not under section 21(4) of the Wealth-tax Act. It was also submitted that if the value of the life interest of the first petitioner in the trust funds was to be included in the total wealth of the first petitioner, a corresponding deduction should be allowed in the assessment of the trusts while determining the wealth of the trusts. The Wealth-tax Officer held that the shares of the beneficiaries could not be said to be determinate or known as on the valuation date and he assessed the trustees under section 21(4) of the Act. Since he assessed the trustees undersection 21(4) he further held that as there was no provision in the Act for deduction as was sought for by the trustees the deduction could not be granted. The assessees took the matter in appeal to the Appellate Assistant Commissioner but it appears that the trustees did not press the ground of section 21(1) and they merely proceeded upon the footing that the interest of the first petitioner was an annuity. The ground that the shares of the beneficiaries in the trust funds were known and determinate was not pressed before the Appellate Assistant Commissioner. The second respondent, Appellate Assistant Commissioner, held that the value of the life interest of the first petitioner in the trust funds as determined should be allowed as deduction in order to arrive at the net wealth of the trust. He, however, held that the first petitioner's life interest in the trusts was not in the nature of an annuity and hence was not exempt from wealth-tax. Against the decision of the Appellate Assistant Commissioner the revenue went in appeal and the first petitioner also went in appeal to the Tribunal. The decision of the Supreme Court in the case of the first petitioner regarding these very trusts was pronounced and hence the Tribunal rejected the contention of the first petitioner that her life interest in the trust funds was an annuity and to that extent the Tribunal confirmed the orders passed by the Wealth-tax Officer and the Appellate Assistant Commissioner. When the appeals filed by the revenue against the decision of the Appellate Assistant Commissioner came up for hearing before the Tribunal, on behalf of the trustees, petitioners 2A, 2B and 2C, it was contended that the beneficiaries and their shares were determinate and known and the trust, therefore, should not have been assessee under sub-section (4) of section 21 of the Act. However, the Tribunal did not permit the trustees to raise this contention because when the appeals were heard before the Appellate Assistant Commissioner, the assessment order passed by the Wealth-tax Officer had not been challenged on this particular ground. The Tribunal accepted the contention of the revenue that as the assessment was made under section 21(4) of the Act, no deduction for the life interest of the beneficiary could be allowed while determining the net wealth of the trust. Thus, the appeals filed by the revenue were allowed. The first petitioner by her application dated November 30, 1972, approached the commissioner of Wealth-tax for deletion of the addition made in the case of the first petitioner for the value of the life interest in the trust funds. Simultaneously, she also moved the Income-tax Appellate Tribunal for rectification of the orders passed in her case by filing a miscellaneous application. The Tribunal in the rectification application proceedings held that there was no mistake apparent on the face of the record which needed to be rectified under section 35 of the Act and by its order dated May 10, 1973, dismissed the application for rectification. The present special civil application is directed against annexure 'I', the order passed by the Tribunal in rectification proceedings.
3. It is clear in the light of the decision of this court in Commissioner of Income-tax v. Karamchand Premchand Pvt. Ltd. : [1969]74ITR254(Guj) , that where, in an appeal to the Appellate Assistant Commissioner by the assessee against an order of assessment, the assessee has not question the decision of the Income-tax Officer on a point decided, and the Appellate Assistant Commissioner has not in his order considered that point, the assessee is not entitled to question the decision of the officer on that point in an appeal to the Appellate Tribunal against the order to the Appellate Assistant Commissioner and the Tribunal is not entitled to allowed the assessee to agitate the question under the guise of granting leave under rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963. It is, therefore, clear that the Tribunal rightly held in the group of appeals filed by the revenue that the trustees could not allowed to agitate the question regarding the shares of the assessee being determinate and known and the provisions of section 21(4) of the Wealth-tax Act not being applicable to them. In the light of this decision the Tribunal could not have gone into the question whether the trustees were liable to assessed under section 21(4) of the Act or whether they should have been assessed under section 21(4) of the Act because against the decision of the Wealth-tax Officer, the trustees had not questioned the decision of the Wealth-tax Officer on this particular point when the appeal was heard by the Appellate Commissioner.
4. The question then arises as to whether the rectification proceedings under section 35 of the Wealth-tax Act could have been maintained on the ground of their being an error apparent from the record. Relying on certain observations of the Supreme Court in Income-tax Officer v. S. K. Habibullah : [1962]44ITR809(SC) , Mr. Kaji for the respondents contended that though there might have been error apparent from the record of another case, namely, the case of the trustees, there was no error apparent from the record of the case so far as the first petitioner was concerned. It must be remembered that the rectification application was preferred by the first petitioner. Mr. Kaji relied upon the following passage from the judgment of Subba Rao C.J., speaking for the Division Bench of the Andhra Pradesh High Court in Kanumarlapudi Lakshminarayana Chetty v. First Additional Income-tax Officer, Nellore : [1956]29ITR419(AP) , where the Andhra Pradesh High Court was concerned with the question whether the record of the assessment of the firm may be regarded as the record of the assessment of the individual partner. The following passage from the judgment of Subba Rao C.J. was approved by the Supreme Court in Income-tax Officer v. S. K. Habibullah : [1962]44ITR809(SC) , and it was held that this passage lays down the law correctly :
'But it is said that section 35 of the Act even without the amendment would have enabled the income-tax authorities to reopen the assessment on the ground that there was a mistake apparent from the record. But from the record, of final assessment, it is impossible to say that there was a mistake apparent from the record, for the assessing authority accepted a certain figure as representing the share of the assessees in the firm and made a final assessment. The mistake is not in the record but by a subsequent assessment of the firm, it was discovered that the earlier assessment was wrong to the extent of the assessees' share in the firm. It is not a mistake apparent from the record but a mistake discovered from the disposal of another case.'
5. Relying on this passage Mr. Kaji contended before us that in this particular case there was the record of the case of the first petitioner and there was the record of the case of the trustees and because of what happened in the case of the trustees, it cannot be said that there was a mistake apparent from the record so far as the beneficiary, the first petitioner, was concerned. We are unable to accept this argument. Argument by analogy is always dangerous and is likely to mislead one into deciding a point wrongly. It must not be forgotten that the trustees were sought to be assessee under section 21 of the Wealth-tax Act. As has been pointed out in Commissioner of Wealth-tax v. Kumari Manna G. Sarabhai : [1972]86ITR153(Guj) :
'... the assessment which is contemplated to be made on the trustees under sub-sections (1) and (4) of section 24 is assessment in a representative capacity. It is really the beneficiaries who are sought to be assessed in respect of their interest in the trust properties through the trustees. Sub-section (1) provides that in respect of trust properties held by the trustees, wealth-tax shall be levied on them in the like manner and to the extent as it would be leviable upon the beneficiary for whose benefit the trust properties are held. This provision obviously can apply only where the trust properties are held by the trustees for the benefit of a single beneficiary or where there are more beneficiaries than one, the individuals shares of the beneficiaries in the trust properties are determinate and known. Where such is the case, wealth-tax can be levied on the trustees in respect of the interest of any particular beneficiary in the trust properties in the same manner and to the same extent as it would be leviable upon the beneficiary and in respect of such interest in the trust properties, the trustees would be assessed in a representative capacity as representing the beneficiary.'
6. So far as sub-section (4) is concerned, this decision in Commissioner of Wealth-tax v. Kumari Manna G. Sarabhai : [1972]86ITR153(Guj) , further says :
'... sub-section (4) of section 21 provides that where the shares of the beneficiaries for whose benefit the trust properties are held are indeterminate or unknown, the wealth-tax may be levied upon the trustees as if the beneficiaries for whose benefit the trust properties are held were an individual for the purposes of the Act. Since the interests of the beneficiaries in the trust properties in such a case would be indeterminate or unknown, it would not be possible to make direct assessment on any beneficiary in respect of his interest in the trust properties nor would it be possible to levy wealth-tax on the trustees in respect of the interest of any beneficiary in the trust properties 'in the like manner and to the same extent as it would be leviable upon' such beneficiary, under sub-section (1). The legislature, therefore, provides that, in a case of this kind, wealth-tax may be assessee on the trustees as if the beneficiaries were an individual, so that, for the purpose of assessment, a fiction would be created as if the trustees hold the trust properties for the benefit of a single beneficiary and assessment would be made on the trustees on such fictional basis under sub-section (1). When assessment is made on the trustees on the fictional basis as if the beneficiaries were one individual, it is assessment on the trustees in a representative capacity and what is assessed to wealth-tax is the totality of the interest of the beneficiaries in the trust properties. It is, therefore, apparent that once assessment is made on the trustees in respect of the interest of the beneficiaries in the trust properties under sub-section (4), the beneficiaries cannot be again assessee directly in respect of their interest in the trust properties. The interest of the beneficiaries in the trust properties having suffered assessment to wealth-tax in the hands of the trustees in a representative capacity, cannot again be assessed to wealth-tax in the hands of the beneficiaries.'
7. In view of this decision in Commissioner of Wealth-tax v. Kumari Manna G. Sarabhai : [1972]86ITR153(Guj) , it is obvious that once the trustees were assessed under section 21(4) of the Act, it was not open to the revenue to assess the beneficiary, the first petitioner herein, so far as her interest in the same trust funds was concerned. The beneficiary, the first petitioner, could not have been again assessed directly in respect of her interest in the trust properties and it is elementary that the revenue cannot seek to assess the same asset twice. Therefore, once it is held that the question about the liability of the trustees to be assessed under section 21(4) of the Wealth-tax Act is concluded against them by reason of what happened before the Appellate Assistant Commissioner at the stage of the appeal before that officer, the question has to be considered so far as the individual assessment of the first petitioner is concerned, namely, whether her interest in these very trust properties having suffered assessment to wealth-tax in the hands of the trustees in their representative capacity could again be assessed to wealth-tax in her hands and the answer to that question must obviously be in the negative. This was the mistake which was apparent from the record of the case of the first petitioner and since the trustees were representing the beneficiaries when they were assessed in a representative capacity, it was not another case so far as the first petitioner was concerned. We have referred to 'another case' in the light of the observations of Subba Rao C.J., in the passage quoted above. The case against the trustees was the same as the case against the beneficiaries. To take but one illustration, section 21 of the Wealth-tax Act deals not only with the assessment of trustees in a representative capacity. It also deals with the guardian of a minor being assessed in the representative capacity in respect of the wealth of the minor. It speaks of assets which are held by a court of wards or an administrator-general or an official trustees or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another. Now, if in the assessment proceedings against a court of wards certain order has been passed and subsequently on the property coming back to the ward himself, the question is sought to be agitated, it cannot be said that the case against the court of wards is another case as compared to the case of the ward himself. In all such cases, as has been rightly said, the trustees, the court of wards, the administrator-general or an official trustees or any receiver or manager are being assessed in a representative capacity and they represent the person for whose benefit or on whose behalf they are holding the properties. But in reality and in substance it is the beneficiary concerned, the person on whose behalf the property is held, in respect of whose wealth the assessment proceedings are being held. Under these circumstances it is obvious that the contention of the revenue based on the above quoted passage from the decision of Subba Rao C.J. cannot help the revenue and that contention must be rejected.
8. Mr. Kaji, on behalf of the respondent, lastly contended that what was sought to be assessed so far as the first petitioner, the beneficiary, was concerned was her right to receive income from the trust funds but she was not sought to be assessed for any corpus of the trust funds. On the other hand, the trustees were being assessed in respect of the wealth held by them and, therefore, a clear distinction should be made between the assessment against the trustees in respect of the corpus of the trust funds and on the assessment against the beneficiary on the valuation of her right to receive income from this very trust fund. This argument also must be rejected because the whole scheme of section 21 of the Act is that the trustees whether they hold the trust funds for the life tenant who is entitled to receive only the income or whether they hold the corpus for the purpose of handing it over in certain eventualities to a particular beneficiary, are being assessed in a representative capacity and they represent the beneficiary whatever the nature of the beneficiary's interest in the corpus of the trust fund may be. It is only in this limited representative capacity that the trustees can be assessed under section 21 of the Wealth-tax Act and once that central feature is borne in mine, it is obvious that whether the beneficiary has a right to receive a portion of the corpus or whether she has a right to receive a portion of the corpus or whether she has a right to receive income from the trust fund, it is still that right which has to be evaluated in terms of money and it has to be brought to tax if it can brought to tax in the beneficiary's hands but it cannot be urged that just because the beneficiary has the right to receive only the income from the corpus of the fund she stands on a different footing or the trustees of that particular trust stand on a different footing from the trustees of a trust deed where the beneficiary is to benefit in certain eventualities. section 21 makes no such distinction between the two cases.
9. It is obvious that it was an error apparent from the record of the case so far as the first petitioner's case was concerned that the entire corpus of the trust fund having been assessed in the hands of the trustees in a representative capacity under section 21(4), the individual interest of the individual beneficiary under the trust deed was also brought to tax because the same interest could not be brought to tax twice over. In the light of what we have referred to above from the decision of this court in Commissioner of Wealth-tax v. Kumari Manna G. Sarabhai : [1972]86ITR153(Guj) it is clear that it was an error apparent from the record of the case so far as the assessment of the beneficiary directly in respect of her interest in the trust properties is concerned. The decision of the Tribunal, therefore, rejecting the rectification application must be quashed and set aside.
10. We, therefore, allow this special civil application and quash and set aside the order, annexure 'I' to the petition. We direct that the Tribunal should rectify the mistake, the error apparent from the record, in the light of the observations which we have made in the course of this judgment. We direct the Tribunal to rectify the record of the case so far as assessment years 1961-62 to 1964-65 of the first petitioner is concerned by deleting from her total wealth the value of her interest in the two trust funds. Respondents Nos. 1 and 2 will pay the costs of this reference to the petitioner. Rule absolute accordingly.