MUSHTAQ HUSSAIN, J.-Nasir A. Sheikh submitted his returns for the assessment year 1960-61. He claimed to have transferred shares of the face value of Rs. 7,32,260 to his wife. During the year ended 30th of June, 1960, a dividend of Rs. 50,072 was received on these shares by his wife Mst.
Khurshid Begum. It was claimed by the assessee that these shares bad been transferred to Mst.
Khurshid Begum, his wife, to consideration of her Mahar which was originally Rs. 32,000 but which had been increased in the year 1958 to ten lacs of rupees. The Income-tax Officer declined to accept this transfer being one which would attract the provisions of section 16(3) (a)(iii) of the Income-tax Act.
2. The assessee felt aggrieved and filed an appeal which was dismissed by the Income-tax Appellate Tribunal whereupon he applied for reference of the following question to this Court "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 ?"
3. While the question, as it is framed, apparently seems to be a question of law, it is one pre- eminently of fact in the peculiar circumstances of this case. Neither the Income-tax Officer nor the Tribunal bas contended that it is not open to a Muslim to increase the amount of dower after the marriage has taken place or that transfer of property with a view to paying of such increased amount of dower would not be covered by the provisions of the Income-tax Act, aforesaid. Had they said so , it would certainly have been for this Court to interpret the aforesaid provisions and to find whether such a payment could be covered by them.
4. In the present case, however, all that the -Tribunal has done is to refuse to accept the contention of the assessee that- "In the instant case there is no dispute between the spouses over the refixation of dower but in this refixation the revenue is as well an interested party, and it has the right to know whether or not refixation had taken place, and it is only in the event of refixation being duly proved that the exception contained in section 16 (3)(iii) of the Act would come into play in favour of the assessee."
The Tribunal found that the only evidence led to prove the transfer of shares to the wife for adequate consideration were two affidavits one by the husband i.e. The assessee, and the other by the wife. The Tribunal came to the conclusion that- "Apart from the other shortcomings in the claim failure to produce some sort of record or evidence prepared or available at the time the alleged increase was made appears fatal to the claim. In other words absence of contemporaneous evidence or record goes to the very root of the claim set up on the basis of the exception provided in clause (iii) of section 18(3) of the Act."
It is, therefore, clear that the Tribunal did not accept the two affidavit 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 is a finding of fact and unless it is reversed the benefit of section 16(3)(iii) of to Income-tax Act would not be available to the assessee. It needs no gainsaying that findings of fact arrived at by the Tribunal are conclusive and there is nothing in the circumstances of this case which could lead us to the conclusion that the findings of fact of the Tribunal were vitiated by misreading o evidence, ignoring of evidence, etc.
5. It was submitted vehemently by the learned counsel for the petitioner that the requirement of documentary evidence postulated by the Tribunal had no legal backing. We are afraid the Tribunal never held that it was only documentary evidence by which the infra-structure of the claim in the present case could be made available. All that it is said was that the fact of increase of dower had to be proved either by record or evidence prepared or available at the time that the dower was increased.
6. Since the Tribunal was not satisfied on the factual planes, it was certainly right in holding that the sum of Rs. 50,072 representing the C dividend on the aforementioned shares was properly included in the income of the assessee. We would, therefore, answer the question posed in the affirmative and leave the petitioner to bear the costs of the Department.