Judgment S.K. Jha, J. These two references have been made under section 256 (1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") at the instance of the assessee. The points involved in the two references are identical, the facts are common hence this common judgment. Tax Case No. 13 arises out of the assessment year 1964-65 whereas Tax Case No. 14 relates to the assessment year 1965-66. 2. The short facts relevant for the purpose of answering the questions referred for our opinion may be stated thus. The assessee is the owner of considerable assets and properties valued at over Rs.25,00,000/- which includes 1/19th share in Seraikela Glass Works (P) Ltd., which is a private limited company. The shares of this company are mostly held by the assessee and his relatives. The assessee was married on the 6th of March, 1963. When he came home with his bride he made a gift of 20 shares of the aforesaid Company on the 14th of March, 1963, to his two minor nephews, who are sons of his elder brother named P.C. Varshnei. On that very day P.C. Varshnei, the elder brother aforesaid, made a gift of his 20 shares of the same Company to the bride of the assessee. Her name is Srimati Padmini Varshnei. The assessee's contention before the Assessing Officer was that these gifts were made in accordance with the custom prevalent in the family of the assessee. The Income Tax Officer came to the conclusion that these gifts made by the assessee to his two minor nephews and by his elder brother P.C. Varshnei to the assessee's wife were merely cross gifts only to avoid the tax liability. The Income Tax Officer therefore, included the income from the 20 shares of the Company in the assessable income of the assessee as being an instance of indirect transfer by the assessee to his wife. A copy of the Income Tax Officer's order has been marked Annexure 'A' to the statement of the case. The assessee having appealed, the Appellate Assistant Commissioner agreeing with the Assessing Officer also held that the gift of 20 shares in the Company was a case of transfer by the assessee indirectly to his wife and, therefore, the income from these shares was to be included in the assessee's income (Annexure B). The assessee having appealed, the Appellate Assistant Commissioner agreeing with the Assessing Officer also held that the gift of 20 shares in the Company was a case of transfer by the assessee indirectly to his wife and, therefore, the income from these shares was to be included in the assessee's income (Annexure B). The assessee pursued a further appeal to the Income Tax Appellate Tribunal. The assessee's contention that there had been a family custom of transfer of such shares on the occasion of marriages and that this was not a case of indirect transfer did not find favour even with the Tribunal. The Tribunal held that the income from the gifted shares would actually amount to income from the assets transferred indirectly by the assessee to his wife and was, therefore, taxable under the provisions of section 64 (iii) of the Act. 3. On these facts and the provision of law, aforesaid, the Tribunal has referred the following three questions for the opinion of this Court. (1) “Whether on the facts and in the circumstances of the case the tribunal was justified in holding that 10 share each gifted by the assesseee to his two minor nephews had really been indirectly transferred by the assessee to his wife and thus the provisions of section 64 (iii) of I.T. Act, 1961 are attracted? (2) Whether in the facts of the appellant's case, the Tribunal was justified in holding that Kothari's case is on all fours with the case of the appellant? (3) Whether the Tribunal was justified in holding that the custom in the appellant's family of making gift on auspicious and special occasions has not been established ?" 4. Mr. Tarkeshwar Prasad, learned counsel for the assessee, urged rather strenuously that the Tribunal was not justified in holding that the assessee had not been able to prove the family custom regarding the transference of such assets on auspicious occasions, such as, marriages in the family. Learned counsel contended that one affidavit of a member of the family had been filed before the Assessing Authority and the Tribunal was not right in not accepting the affidavit as giving a correct picture so far as the proof of custom was concerned. I do not think that there is any sub• stance in this contention of learned counsel. The reasons arc two fold. I do not think that there is any sub• stance in this contention of learned counsel. The reasons arc two fold. Once it is held that the income from any' asset is covered by the express language of section 64 (iii) of the Act, there is no provision in the taxing statute giving any immunity to any such transaction so covered on the ground of the family custom. Even for the purpose of argument it be assumed that any such custom may be said to have been proved, it is not possible to read into the language of section 64 of the Act, any implied proviso which would make the cases of customary transfers exempt from the incidence of taxation. Apart from that, even on the materials on record, I see no justification in holding that the Tribunal has in any way erred in coming to a conclusion that such a family custom has not been proved. It is true that the affidavit of one Harish Chandra Varshnei had been filed before the Assessing Authority, a copy of which is printed not in the paper book of the present reference cases but in another connected Tax Case No. 17 of 1971 as Annexure 'C' to the statement of that case. The Tribunal has held that the affidavit was not sufficient to prove any family custom. It is well-settled that a custom is a rule which in a particular family or a particular class or community has from long usage obtained the force of law. It must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. Learned counsel has taken us through the affidavit of Harish Chandra Varshnei aforesaid. There is nothing in it to establish any condition of antiquity and certainty so far as the alleged family customs is concerned. There is thus no merit in this contention of learned counsel. 5. Learned counsel has taken us through the affidavit of Harish Chandra Varshnei aforesaid. There is nothing in it to establish any condition of antiquity and certainty so far as the alleged family customs is concerned. There is thus no merit in this contention of learned counsel. 5. It was next argued on behalf of the assessee that this could not be said to be a case of indirect transfer. In that connection (Sic) Learned counsel relied upon a decision of the Supreme Court in case of Commissioner of Income-Tax, West Bengal III Vs. Prem Bhai Parekh and others. I am afraid, the contention of learned counsel is not free from fallacy. There are two aspects from which the incidence of taxation in accordance with the provisions of section 64 has to be judged. Section 64 (iii) runs as follows: "64. In computing the total income of any individual, there shall be included all such income as arises directly or indirectly (i)…………….. (ii)……………….. (iii) subject to the provisions of clause (i) of section 27, to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate consideration or in connection with an agreement to live apart." Two things have to be attracted. First it must be proved that there has been a transfer, either direct or indirect, of such asset to the spouse of the transferor, and, secondly, the income which is sought to be taxed must arise either directly or indirectly from the assets so transferred directly or indirectly. If the transfer of an asset is held to be direct or indirect and the income from such an asset arise either directly or indirectly then section 64 (iii) comes into full play. In the absence of either of these two ingredients the income cannot be taxed under the aforesaid statutory provision. The case of Prem Bhai Parekh with which the Supreme Court was seized, on which learned counsel relied rather strongly, was a case where the income was held 'not to have arisen directly or indirectly from the assets transferred. The facts of that case briefly were these. The assessee was a partner in a firm having seven annas share there in. He retired from the firm on the 1st of July, 1954. Thereafter he gifted Rs.75,000/- to each of his four sons, three of whom were minors. The facts of that case briefly were these. The assessee was a partner in a firm having seven annas share there in. He retired from the firm on the 1st of July, 1954. Thereafter he gifted Rs.75,000/- to each of his four sons, three of whom were minors. Subsequently, there was a reconstitution of the firm with effect from the 2nd of July, 1954, whereby the major son became a partner of the firm and the minor sons were admitted to the benefits of the partnership. The question for consideration before the Supreme Court was whether the income arising to the minors by virtue of their admission to the benefits of partnership in the firm could be included in the total income of the assessee under section 16 (3) (a) (iv) of the Income Tax Act, 1922, which corresponds to the provisions of section 64 (iv) of the Act. While dealing with the question whether the income had arisen either directly or indirectly from the assets transferred to the minor sons Hegde, J., speaking for the Court, held that before any income could be brought within the aforesaid statutory provision it must be established that the income arose directly or indirectly from assets transferred directly or indirectly, and, on the facts of that case, his Lordship held that although the share of the minors from the firm came from the amounts transferred to them by their father, the assessee, the income which was involved in that case did not arise either directly or indirectly from the assets transferred by the assessee to those minors. The connection between the gifts and the income in question was a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership and not from out of the assets which were the subject matter of transfer. Thus the second ingredient of section 64 (iv), the principle of which will also apply to a case under section 64 (iii), was found absent. The principle involved in case of Prem Bhai Parekh was, therefore, wholly distinct from the question that we are seized with. The question involved in the present reference is, as to whether on the facts as stated at the outset it can be held to be a case of indirect transfer of assets from the assessee to his wife on the 14th of March, 1963. The question involved in the present reference is, as to whether on the facts as stated at the outset it can be held to be a case of indirect transfer of assets from the assessee to his wife on the 14th of March, 1963. That the income which sought to be taxed is an income from such an asset is not in dispute in these cases. Therefore, the case of Prem Bhai Parekh is not in point. As a matter of fact, the question referred for our opinion is squarely covered by a decision of the Supreme Court in the case of Commissioner of Income Tax v. C.M. Kothari. In that case the facts were these. C.M. Kothari and his two sons D.C. Kothari and H.C. Kothari were the three partners of a firm. On 7-10-1947 the firm entered into an agreement for the purchase of a house and paid an advance of Rs.5,000/-. This sum was debited in its books to the personal accounts of the partners. C.M. Kothari was debited with Rs.1800 and D.C. Kothari and H.C. Kothari each were debited with Rs.1600/-. The transaction was completed on 24-10-1947 and the sale deed was taken in the names of Mrs. C.M. Kothari and Mrs. D.C. Kothari and the third partner H.C. Kothari. The balance of the consideration Rs.85,000/- was paid to the vendors by the firm and to make up this amount, H.C. Kothari was debited with a slim of Rs.28,000/- and odd in the firm's books and Mrs. C.M. Kothari and Mrs. D.C. Kothari each paid to the firm by cheque a sum of Rs.28,000/- and odd. Mrs. C.M. Kothari further paid a cheque of Rs.1800/- and Mrs. D.C. Kothari another cheque for Rs.1600/- to the firm which were the amounts debited to the accounts respectively of C.M. Kothati and D.C. Kothari out of the advance of Rs.5,000/-. The firm paid into Mrs. C.M. Kothari's bank account two cheques, one on, 24-10-1947 for Rs.27,000/-, which was stated to be a birthday gift by D.C. Kothari to his mother, and another on 13-11-1947 for Rs.3,000/- as a gift by D.C. Kothari to his mother for Diwali. Both these Sums were debited in the firm's account to D.C. Kothari. Similarly, on 13-11-1947 Mrs. D.C. Kothari's bank account was credited with a sum of Rs.30,000/- by a cheque issued by the firm. Both these Sums were debited in the firm's account to D.C. Kothari. Similarly, on 13-11-1947 Mrs. D.C. Kothari's bank account was credited with a sum of Rs.30,000/- by a cheque issued by the firm. That amount was debited to C.M. Kothari in the firm's account and was shown as a gift by him to his daughter-in-law. On these facts the question which arose for consideration of the Supreme Court was whether the income could be said to be covered by the provisions of section 16 (3) (a) (iii) of the 1922 Act, which, as already stated, corresponded to section 64 (iii) of the Act, with which we are concerned. In dealing with that question, their Lordships held that the case was an admirable instance of how indirect transfers could be made by substituting the assets of another person who had benefited to the same or nearly the same extent from assets transferred to him by the husband. The argument put forward before the Supreme Court on behalf of the assessee, who had succeeded in the High Court, was that even if chain transactions could be said to be included within the purview of section 16 (3) (a) (iii), unless there was consideration for the transfer by the husband, each transfer must be regarded as independent; and since it had not been proved that the transfers by the son to the mother and by the father-in-law to his daughter-in-law were made as consideration for each other it could not be brought within the relevant statutory provision. Their Lordships while repelling that contention held: "It is not necessary that there should be consideration in the technical sense. If the two transfers are inter-connected and are parts of the same transaction in such a way that it can be said that the circuitous method has been adopted as a device to evade implications on this section, the case will fall within the section." and again : "An intimate connection between the two transactions which were prima facie separate, is thus clearly established and they attract the words of the section, namely, 'transferred directly of indirectly to the wife'." The instant Cases present very little difficulty, if at all. It is a clear case of two transfers forming part of the same transaction. It is a clear case of two transfers forming part of the same transaction. On the 14th of March, one brother makes a gift of 20 shares to the two minor sons of the other brother while the other brother on that very day transfers an exactly equal number of shares 'of the same value to that brother's wife. There is no veil even to be pierced through. The nature of the transfer being indirect is patently palpable and it cannot but be held that there is an intimate connection between the two transactions which on account of the same occasion and the same day do not even seem to be prima facie separate. Be that as it may the device having been found to be palpable by the Tribunal and I see no reason to take different view of the matter and the two transfers being so intimately connected that they cannot but be regarded as a part of the single transaction, the cases must be held to be covered by section 64 (iii) of the Act. Having stated the facts and the questions of law involved in these two cases, I think, in order to bring out all that is relevant and necessary to be answered, the three questions framed by the Tribunal may be recast into one only and I do so accordingly in the following terms: "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that 10 shares each gifted by assessee to his two minor nephews had really been indirectly transferred by the assessee to his wife attracting provisions of section 64 (iii) of the 1961 Act, and the Tribunal was justified in so holding ?" 6. Having thus reframed the question in each of the two references, I answer the same in the affirmative against the assessee and in favour of the Department. The Department will be entitled to its cost for the hearing of these references. Hearing fee is assessed at a consolidated sum of Rs.150/- only. Reference answered against the assessee.