Sir N.P. Engineer R. J. Kolah, with him for the appel lant.
If the executors were satisfied before the expiration of one year from the testators death that the said undertaking would number be sold to his nephews be cause numbere was willing or able to purchase it or if it remained unsold, at the end of a year, to any of the nephews then whichever event first happened the executors were directed to sell the undertaking to such third person on such terms and at such price as they thought proper.
The second question referred to the High Court for its opinion was in respect of an amount paid by the executors to the widow of the testator.
By a change effected by the Incometax Amendment Act of 1922 they were subjected to taxation twice on the income of 1921 22.
but excluding securities for money and cash in the bank to the credit of the account of that undertaking.
That question was answered against the appellants by the High Court.
CV of 1949 from a Judgment of the Bombay High Court Chagla C.J. and Tendolkar J. dated March 19, 1948, in a reference made by the Income tax Appel late Tribunal under section 66 1 of the Indian Income tax Act Income tax Reference No.
APPEAL Civil Appeal No.
The undertaking was to be sold so as to include all his interest in the premises, the goodwill, the stock in trade, plant, furniture etc.
During his life time, the testator carried on the business of shipping agents.
Probate of the will was issued to the executors on the 10th of August, 1942.
December 21.
The business was, so1d to one of the nephews on the 1st of January, 1943.
The clause ended with the following words .
The assessees appel lants are the executors of the will of Mr. J.K. Dubash who died on the 9th of April, 1942, having made his last will on the 8th of April, 1942.
C. Setalvad, Attorney General for India, G. N. Joshi, with him for the respondent.
The Court delivered Judgment as follows KANIA C.J. This is an appeal from a judgment of the High Court at Bombay delivered on a reference by the Income tax Appellate Tribunal under the Indian Income tax Act.
For this purpose and generally for sale pur poses, he directed that the executors shall, as soon as possible, after his death, have a valuation made of the said undertak ing.
Clause 13 of the will companytains directions about carrying on this business of the testator till its disposal.
The material facts are these.
The appellants companytended that within the meaning of section 25 4 of the Indian Income tax Act the succession to the business took place on the 1st of January, 1943, while the taxing authorities companytended that the succession was on the 9th of April, 1942, when the testator died.
26 of 1947 .
