TMI Blog1984 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... even assuming that they did, the accumulations were less than the permitted percentage. The Appellate Assistant Commissioner agreed with the assessee on both the counts and reversed the finding of the Income-tax Officer. The Department went in appeal against the said order of the Appellate Assistant Commissioner. The departmental representative pointed out that the Appellate Assistant Commissioner was not correct in saying that the two paying trusts were subject to section 11 and at the same time in holding that their donations did not come under the provisions of section 12 of the Act. The learned advocate for the assessee, on the other hand, pointed out that the remark of the Appellate Assistant Commissioner was a clear mistake as was apparent from the reasoning and decision of the order of the Appellate Assistant Commissioner. He produced copies of the deeds of settlement relating to the two paying trusts and submitted that the finding of the Appellate Assistant Commissioner was quite in order. The Tribunal held that the two donor trusts were family trusts whose incomes were not exempt under section 11 of the said Act and, hence, they are trusts to which the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Tribunal was drawn either to the records of the two donor trusts or to the fact that 70% of their income was exempted under section 11 of the Act in their assessments. In the miscellaneous application on behalf of the Department, we also do not find any assertion that the departmental, representative brought to the notice of the Tribunal the facts which are now stated in the miscellaneous application. Therefore, we can confidently say that the facts mentioned in the miscellaneous application did not form part of the materials on record before the Tribunal at the time of the hearing of the appeal, and the miscellaneous application is not entertainable in view of the decision of the Calcutta High Court relied upon on behalf of the assessee. What the Department, in effect, was asking for, was a review of the Tribunal's order which, in the stated circumstances, the Tribunal has no power to do. The right of review in the circumstances as claimed by the departmental representative cannot be assumed unless expressly given by the statute or by the rules having the force of statute. The power which the departmental representative wants us to exercise is not ancillary or incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) for the assessment years 1967-68 and 1968-69 ?" It may be mentioned that, in the statement of case, the Tribunal annexed the copy of the Tribunal's order passed in the miscellaneous application. The Tribunal, in paragraph 8 of the statement of the case, has observed thus: " The above decision of the Tribunal is primarily based on the Appellate Assistant Commissioner's finding towards the end of para 3 of his order to the effect that the family trusts were assessed on the entire income. This fact was not controverted before the Tribunal at the time of hearing and, therefore, it would not be proper to introduce new issues into the statement of the case by accepting the departmental representative's plea that the observations of the Appellate Assistant Commissioner needed correction or were not in accordance with reality." The question before the Tribunal was whether the Appellate Assistant Commissioner was justified in holding that the voluntary donations received by the assessee from two other trusts were not hit by the provisions of section 12(2) of the Act and accordingly were entitled to the benefits of section 11 of the Act. Section 12 of the Act as it stood prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this case. According to Mr. Maitra, the conclusion of the Tribunal cannot be sustained as the Tribunal arrived at its decision on irrelevant materials. Mr. R. N. Bajoria, learned advocate for the assessee, on the other hand, has submitted that the specific question challenging the finding of the Tribunal had been rejected by the Tribunal and, therefore, the question referred to this court has to be answered on the facts found by the Tribunal. It is his contention that the Revenue cannot dispute the fact that section I 1 of the Act did not apply to donor trusts. He, therefore, submits that the question in this reference has to be answered in favour of the assessee. If the question referred to us is answered on the basis of the facts incorporated by the Tribunal in the statement of case, in that event, the contention of Mr. Bajoria has to be upheld and the question in the reference has to be answered in favour of the assessee. But a more fundamental question is involved in this reference. The Appellate Assistant Commissioner, in his order, observed as follows : "Being family trusts, they were not having any property held for charitable or religious purpose. The fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r called for the records when the correctness of the primary facts were at issue. It is not a case where even after granting an opportunity to the Revenue, the Revenue failed to produce the records and the Tribunal had to proceed on the materials on record. The Tribunal has nowhere said that the Revenue failed to produce the records even after opportunity was given. If the assessment orders of the donor trusts were disputed, the Tribunal would have been justified in rejecting the plea of the Revenue but where there was no dispute as regards the assessment orders of the donor trusts showing how the donor trust has been assessed and where the conclusion of the Tribunal on a question of law entirely depended on the correctness of the basic and primary facts and when it was pointed out to the Tribunal that the basic or the primary fact on which the conclusion was based is contrary to the evidence on record, the Tribunal should have entertained the plea of the Revenue raised in the miscellaneous application and reheard the appeal. It is well settled by now that it is for the Tribunal to find facts and it is for the High Court to lay down the law applicable to the facts found. The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scellaneous application did not say that the facts stated in the miscellaneous application were not correct nor did the assessee raise any such contention. Unless the Tribunal holds that a question of law does not arise out of its appellate order or holds that the question suggested is not a question of law and rejects such question suggested by the Revenue or the assessee specifically, it cannot be said that such question has, been rejected. Otherwise, the aggrieved party is deprived of the right to move the High Court under section 256(2) of the Act. When the Tribunal frames a question of its own not specifically raised in the reference application without rejecting the question or questions suggested in the reference application, it must be held that the Tribunal as matter of fact did not reject any such question or questions but referred the question which according to the Tribunal embraces all the facets and/or issues involved in the different questions as suggested in the reference application. As indicated earlier, the Revenue in the first question has challenged the correctness of the finding of the Tribunal. The question whether the Income-tax Officer was correct in invoki ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
