26[Charge of tax where share of beneficiaries unknown.
164. (1) 27[Subject to the provisions of sub-sections (2) and (3), where] any
income in respect of which the persons mentioned in clauses (iii) and (iv)
of sub-section (1) of section 160 are liable as
representative assessees or any part thereof is not specifically receivable on
behalf or for the benefit of28 any one person or where
the individual shares of the persons on whose behalf or for whose benefit such
income or such part thereof is receivable are indeterminate or unknown (such
income, such part of the income and such persons being hereafter in this
section referred to as “relevant income”, “part of relevant income” and
“beneficiaries”, respectively), 29[tax shall be charged on the relevant income or part of relevant income
at the maximum marginal rate30 :]
Provided that in a case where—
31[(i) none
of the beneficiaries has any other income chargeable under this Act exceeding
the maximum amount not chargeable to tax in the case of an 32[association of persons] or is a beneficiary
under any other trust; or]
(ii) the relevant income or part of relevant
income is receivable under 33[a trust declared by any person by will and such trust is the only trust
so declared by him]; or
(iii) the relevant income or part of relevant
income is receivable under a trust created before the 1st day of March, 1970,
by a non-testamentary instrument and the 34[Assessing] Officer is satisfied, having regard to all the circumstances
existing at the relevant time, that the trust was created bona fide
exclusively for the benefit of the relatives of the settlor, or where the
settlor is a Hindu undivided family, exclusively for the benefit of the members
of such family, in circumstances where such relatives or members were mainly
dependent on the settlor for their support and maintenance; or
(iv) the relevant income is receivable by the
trustees on behalf of a provident fund, superannuation fund, gratuity fund,
pension fund or any other fund created bona fide by a person carrying on
a business or profession exclusively for the benefit of persons employed in
such business or profession,
tax shall be charged 35[on the relevant income or part of relevant
income as if it] were the total income of an 36[association of persons] :
37[Provided further that where any income
in respect of which the person mentioned in clause (iv) of sub-section
(1) of section 160 is liable as representative
assessee consists of, or includes, profits and gains of business, the preceding
proviso shall apply only if such profits and gains are receivable under a trust
declared by any person by will exclusively for the benefit of any relative
dependent on him for support and maintenance, and such trust is the only trust
so declared by him.]
38[(2) In the case of relevant income which is
derived from property held under trust wholly for charitable or religious
purposes, 39[or which is of the nature referred to in sub-clause (iia) of
clause (24) of section 2,] 40[or which is of the nature referred to in
sub-section (4A) of section 11,] tax shall be
charged on so much of the relevant income as is not exempt under section 11 41[or section 12], as if the relevant income
not so exempt were the income of an association of persons :
42[Provided that in a case where the whole
or any part of the relevant income is not exempt under section
11 or section 12 by virtue of the provisions
contained in clause (c) or clause (d) of sub-section (1) of section 13, tax shall be charged on the relevant
income or part of relevant income at the maximum marginal rate.]]
43[(3) In a case where the relevant income is
derived from property held under trust in part only for charitable or religious
purposes 44[or is of the nature referred to in sub-clause (iia) of clause (24)
of section 2] 45[or is of the nature referred to in sub-section (4A) of section 11,] and either the relevant income applicable
to purposes other than charitable or religious purposes (or any part thereof) 46[is not specifically receivable on behalf or
for the benefit of any one person or the individual shares of the beneficiaries
in the income so applicable are indeterminate or unknown, the tax chargeable on
the relevant income shall be the aggregate of—
(a) the tax which would be chargeable on that
part of the relevant income which is applicable to charitable or religious
purposes (as reduced by the income, if any, which is exempt under section 11) as if such part (or such part as so
reduced) were the total income of an association of persons; and
(b) the tax on that part of the relevant income
which is applicable to purposes other than charitable or religious purposes,
and which is either not specifically receivable on behalf or for the benefit of
any one person or in respect of which the shares of the beneficiaries are
indeterminate or unknown, at the maximum marginal rate :]
Provided that in a case where—
47[(i) none
of the beneficiaries in respect of the part of the relevant income which is not
applicable to charitable or religious purposes has any other income chargeable under
this Act exceeding the maximum amount not chargeable to tax in the case of an
association of persons or is a beneficiary under any other trust; or]
(ii) the relevant income is receivable under 48[a trust declared by any person by will and
such trust is the only trust so declared by him]; or
(iii) the relevant income is receivable under a
trust created before the 1st day of March, 1970, by a non-testamentary
instrument and the 49[Assessing] Officer is satisfied, having regard to all the circumstances
existing at the relevant time, that the trust, to the extent it is not for
charitable or religious purposes, was created bona fide exclusively for
the benefit of the relatives of the settlor, or where the settlor is a Hindu
undivided family, exclusively for the benefit of the members of such family, in
circumstances where such relatives or members were mainly dependent on the
settlor for their support and maintenance,
tax shall be charged 50[on the relevant income] as if the relevant
income (as reduced by the income, if any, which is exempt under section 11) were the total income of an association of
persons :]
51[Provided further that where the
relevant income consists of, or includes, profits and gains of business, the
preceding proviso shall apply only if the income is receivable under a trust
declared by any person by will exclusively for the benefit of any relative
dependent on him for support and maintenance, and such trust is the only trust
so declared by him :
Provided also that in a case where the whole or any part of
the relevant income is not exempt under section 11
or section 12 by virtue of the provisions contained
in clause (c) or clause (d) of sub-section (1) of section 13, tax shall be charged on the relevant
income or part of relevant income at the maximum marginal rate.]]
52[Explanation 1.—For the purposes
of this section,—
(i) any income in respect of which the persons
mentioned in clause (iii) and clause (iv) of sub-section (1) of section 160 are liable as representative assessee or
any part thereof shall be deemed as being not specifically receivable on behalf
or for the benefit of any one person unless the person on whose behalf or for
whose benefit such income or such part thereof is receivable during the
previous year is expressly stated in the order of the court or the instrument
of trust or wakf deed, as the case may be, and is identifiable as such on the
date of such order, instrument or deed ;
(ii) the individual shares of the persons on whose
behalf or for whose benefit such income or such part thereof is received shall
be deemed to be indeterminate or unknown unless the individual shares of the
persons on whose behalf or for whose benefit such income or such part thereof
is receivable, are expressly stated in the order of the court or the instrument
of trust or wakf deed, as the case may be, and are ascertainable as such on the
date of such order, instrument or deed.
Explanation 2.—
[Omitted by the Direct Tax
Laws (Amendment) Act, 1987, w.e.f. 1-4-1989.]