1 WP.569/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.569 OF 2010 Amit Rasiklal Shah ...Petitioner Vs. Sonal Amit Shah ...Respondent Ms. T. F. Irani for the Petitioner Mr. Rakesh K. Agarwal for Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 18TH NOVEMBER, 2010 ORAL ORDER : 1. The Petitioner husband has challenged the order of the Family Court, Mumbai dated 4th November 2009 granting interim maintenance of Rs.20,000/- to his wife and Rs.10,000/- each to his sons in the Petition filed by the wife. 2. The Petitioner’s income is required to be seen to adjudicate whether the impugned order grants a reasonable amount of maintenance or whether the maintenance is excessive considering the Petitioner’s station in life. 2 WP.569/2010 3. The Respondent wife has not been shown to be having any separate means of livelihood. The two children are aged about 12 and 10 years. 4. The Petitioner has produced income tax returns for 3 years. He contends that net taxable income is the only numerical figure from the income tax returns must be seen by the Court based upon which the maintenance for the wife and children must be granted. The contention is wholly incorrect. It would be absurd to consider the net income of an assessee who has various sources of income some of which may not be liable to tax at all. 5. Consequently, the computation of taxable income of the Petitioner’s individual returns must be seen in its entirety and has to be read as a whole. The Petitioner is admittedly in business. Hence the business returns of the partnership firm or sole proprietary concern along with the trading and profit and loss account as well as the balance sheet of the firm must be seen to appreciate what income the firm or the individual would have at least approximately earned and what income is ultimately shown as the net taxable income. This is aside from the fact that it is settled position in law that the tax returns of a party shown by the party in Court, specially in matrimonial proceedings, cannot be taken for the gospel. 3 WP.569/2010 6. With that it will be interesting and appropriate to decipher the Petitioner’s income from the individual returns shown by himself. 7. The Petitioner was married in 1997. The parties have fallen off in April 2006. The wife lives with her two sons in her parental home. 8. The Petitioner’s income tax returns is for the year 2006-2007. It makes interesting reading. The income from his business and profession is only Rs.9695/-. The long term capital gains of the Petitioner are Rs.3.62 lakhs. Income from other sources is Rs. 1 lakh and the gross total income is Rs.4.72 lakhs. After deductions under Section 80 C of the Income Tax Act of Rs.1 lakh the total income is shown to be Rs.3.72 lakhs. The computation of his total income shows, not profit from his business, but as salary of Rs.1 lakh with the aforesaid capital gains. 9. For the next assessment year 2007-2008 the Petitioner has shown the share of profit from his firm of Vintex Optics as well as Mesha International. These are petty figures of Rs.25000/- and Rs.9000/- each. The Petitioner has shown the remuneration from Vintex Optics which exceeds his share of profit. It is approximately Rs.57000/- less interest thereon of 4 WP.569/2010 Rs.27000/-. The Petitioner has shown commission received from another firm. It is stated by him in Court that he had introduced a client from Andheri to his brother in the said firm for which he received a commission of Rs.90000/-. The Petitioner has further shown short term as well as long term capital gains. These are on shares of listed companies. The dividend income from shares, which is exempt from tax is in a sum of Rs.37,688/- as also with interest on RBI bonds and PPF interest. The long term capital gains is to the extent of Rs.16.5 lakhs and short term profit of shares treated separately is also shown deducted from the income of the Petitioner on certain shares. Income of the two minor sons of the Petitioner is also shown in his own return. The LIC premium which is deducted is of Rs.1lakh and the Petitioner who is present in Court concedes that the LIC policies are more than Rs.20 lakhs. 10.The returns for the year 2008-2009 also shows the share of profit from Mesha International, but not from Vintex Optics. It shows a loss from this proprietary concern. These returns also show the dividend, PPF, Insurance etc. as in the earlier year. The capital account of the Petitioner which is shown only in the last year’s income tax returns shows gift of Rs.5 lakhs and Rs.2.25 lakhs amongst others given to his father and his brothers. The income from the partnership firm of Nisha International is not shown. Instead the assets in the balance sheet shows a certain flat premises in Goregaon. The 5 WP.569/2010 investments in shares, insurance, mutual funds recurring deposits, PPF etc. are also shown aggregating to about Rs.55 lakhs including the investment in shares of Rs.30 lakhs. Loans and advances are shown against all the family members except perhaps his wife. The cash and bank balances are shown to aggregate to approximately Rs.3 lakhs. 11.These returns themselves show the worth of the Petitioner. They do not show a person who earns an amount of Rs. 20000/- per month as is alleged by the Petitioner. A person who earns that income, if that be his only income, would not be able to invest in shares of listed companies, insurance, PPF account, government bonds, flat, shop etc. Though these assets are not liable to distribution or division whilst considering the interim maintenance, these are required to be seen and appreciated by the court for considering the income earned from such assets to appreciate his standing in society. 12.It is argued on behalf of wife that the Petitioner’s total earnings including earnings as a partner or sole proprietor in the aforesaid firms and as a Director in Global Parasol Reinsurance Bonds besides having shares, bank accounts and cash etc. It is also argued that the Petitioner owns 5 cars and has bank accounts in IDBI Bank, Axis Bank, Indian Overseas Bank and HDFC Bank. The Petitioner also has credit card of Citibank. 6 WP.569/2010 13.The Advocate on behalf of wife drew my specific attention to the income tax returns of the Petitioner for the assessment year 2007-2008 showing the current year’s income remaining after set off of the losses of earlier years including salary, business speculation, short term capital gain etc., to be Rs.3.65 lakhs. The total exempted income including the long term capital gain against security transactions is shown to be Rs.17.5 lakhs. The learned Judge has considered the aforesaid amounts to determine the Petitioner’s standard of living. That has been correctly considered. Though the Petitioner may be entitled to set off the losses and though the Petitioner may be legally exempt from tax for the purpose of payment of income or wealth tax, the fact that the Petitioner has earned those amounts cannot be sidelined. It would have to be considered reading the taxation returns as a whole. Considering these returns itself the interim maintenance amount would be calculated. This would leave out the immovable properties, if any, owned by the Petitioner and the Bank accounts which are not produced before this Court. Upon seeing these returns maintenance of Rs.20000/- for the wife and Rs.10000/- each for the children is not only reasonable, but in order. The order of the learned Family Court Judge is not required to interfered with. 7 WP.569/2010 14.The Writ Petition is dismissed. 15.The Civil Application No.2705/2010 also stands disposed off as infructuous. (SMT. ROSHAN DALVI, J.)