TMI Blog1983 (11) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... years 1959-60 to 1961-62 as made under the old Act of 1922. The second question has been referred in the other four references relating to assessment years 1962-63 to 1965-66. The assessee was a trust known as M/s. Yogiraj Charity Trust. This trust was created by Seth Ram Krishna Dalmia by a deed of trust dated March 7, 1949. The assessment years concerned are 1959-60 to 1965-66. The assessee claimed before the ITO that its income was exempt from tax by virtue of the provisions contained in s. 4(3)(i) of the Indian I.T. Act, 1922, for the years 1959-60 to 1961-62. For the subsequent assessment years 1962-63 to 1965-66 it claimed exemption of this income from tax under the corresponding provisions of ss. 11 and 12 of the I.T. Act, 1961 (hereinafter called as " the Act "). The assessee's claim was that it was public charitable trust and was entitled to exemption provided under the aforesaid provisions of the two Acts respectively. The ITO did not accept the assessee's claim. He noticed that the facts and circumstances which led to the denial of exemption claimed by the assessee in the earlier assessment years remained unchanged in the assessment years in question from that as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unilaterally by Seth Dalmia on March 7, 1949, and with reference to which primarily the High Court and the Supreme Court had negatived the claim of the assessee-trust to exemption. "5(a)(i) ...... (ii).... (iii) To open, found, establish, equip, finance, assist, maintain or contribute to religious, technical, industrial or commercial concerns, institutions, associations or bodies imparting any type of training or providing employment to persons. (iv) To open, found , conduct, maintain or contribute to the opening and maintaining of such institutions where work at living wages c in be provided to poor and deserving people or which are conducive to I he benefit of the poor and the development of industries ...... .. Again by cl. 5(b) the trustees were empowered for the purpose of carrying out the objects set out in cl. 5(a) to purchase or otherwise acquire, start, establish, equip or close any business, undertaking or industry, to purchase, acquire or undertake the whole or any part of property and liabilities of any person, firm or company and to train persons in any business or industry and grant them stipends, allowances, or bonuses as may be determined by the trustees from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of this court itself. These facts are extracted below: On January 11, 1972, the founder of the trust, Seth Ram Krishna Dalmia, filed a suit for rectification of the trust deed under s. 26 of the Specific Relief Act. The Yogiraj Charity Trust as well as two of its trustees were made defendants to the suit. In the plaint it was stated that the plaintiff had been desirous of creating a charitable trust for the amelioration of the public and that in order to satisfy his intention, will and understanding, the trust had been founded by the deed executed on March 7, 1949. It was stated that the intention and belief of the plaintiff since the creation of the trust was to maintain the trust as charitable trust for the well being of the public. However, the judgment of the High Court had held that due to the provisions contained in certain clauses of the deed, the same is non-charitable and that the defendant trust was not entitled to the exemption claimed under the I.T. Act. The plaintiff stated that from the very beginning he was under the honest belief that the object clause of the trust deed aimed only at public charity and that some bona fide mistake and differences in interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to allow the parties to lead evidence in the aforesaid regard and to submit his report in the matter to the Tribunal and the Tribunal should then decide the case. In support of his above contention that such a course is available to this court in these references, Shri Sharma cited a large number of decisions of various courts. We may say at the very outset that, in our opinion, the course as suggested by Shri Sharma is not warranted by law. The Tribunal in arriving at its conclusions fully took note of the entire material that was placed by the parties on the record and in these references we have to see as to whether the conclusions of the Tribunal on the basis of the material before it are or are not correct in law. Obviously this is not a case in which the Tribunal could not reasonably and effectively decide the matters in controversy on the basis of the material that was placed by the parties on the record. In fact the material now sought to be placed before the Tribunal by the assessee is the one which was not in existence till the Tribunal passed its orders out of which these references have arisen and the, event itself, namely, the rectification of the trust deed, took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court may call for a supplementary statement under section 66(4), but the power of the High Court can be exercised only in respect of material and evidence which has already been brought on the record. In calling for a supplementary statement of the case under section 66(4) of the Indian Income-tax Act, 1922, the High Court can require the Tribunal to include in such supplementary statement only such material and evidence as may already be on the record but which has not been included in the statement of the case made initially under section 66(1) or section 66(2). It has no jurisdiction to direct the Appellate Tribunal to collect additional material and make it a part of the supplementary statement ...... Proceedings taken for the recovery of tax under the provisions of the Income-tax Act are naturally intended to be over without unnecessary delay, and so it is the duty of the parties, both the Department and the assessee, to lead all their evidence at the stage when the matter is in charge of the Income-tax Officer. Opportunity is, however, given for adducing additional evidence by section 31(2) of the Act, and rule 29 of the Appellate Tribunal Rules; but if further evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed before the Supreme Court that as the revenue authorities or the Tribunal did not enquire into that, the matter may be sent back to the Tribunal to determine that matter after allowing the parties to adduce additional evidence. It was on this agreement of the parties that the case was sent back to the Tribunal to determine whether the amounts were held in West Pakistan as a capital asset or as a trading asset and then to determine whether the loss suffered by the appellant was a trading loss or the question as to whether the said sums were held in West Pakistan as capital assets or as trading assets. The Tribunal was directed to determine the question on the basis of the additional evidence. In the case, Raghunath Prasad Poddar v. CIT [1973] 90 ITR 140 (SC), it was held (headnote) "The assessee, a dealer in jute and jute goods, purchased pucca delivery orders relating to gunny bags from various parties after paying the full price of the goods covered by the orders and transferred these orders to buyers after receiving the price fixed for the sale of those goods. The Tribunal held that since the goods covered by the delivery orders were not actually delivered to the buyers, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich any aspect of the matter in controversy was not considered by the Tribunal. By remand of the cases the assessee wants additional evidence to be adduced regarding an event which was not even in existence till the Tribunal disposed of the cases and the evidence regarding which came into existence subsequent to the disposal of the cases by the Tribunal. Apart from the above, it is worth noting that in neither of the abovesaid cases the decision of the Supreme Court in the case of Keshav Mills Company Ltd. [1965] 56 ITR 365 (SC), was brought to their Lordships' notice. In any case, even if it be considered that there is a conflict of opinion in the decisions of the cases of Raghunath Prasad Poddar [1973] 90 ITR 140 (SC) and of Keshav Mills Company Ltd. [1965] 56 ITR 365 (SC), the latter is a judgment of a Bench consisting of seven judges, whereas the other case as referred to above is a judgment of a Bench of two judges of the Supreme Court. It is settled law that in case of conflict between two judgments of the same court, the judgment of a larger Bench has to prevail over the other judgment. In the case of CIT v. George Henderson and Co. Ltd. [1967] 66 ITR 622, the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppening of a subsequent event which has the effect of bringing a change in the relevant factual position retrospectively. The question that such a change may be brought about by a decree of a civil court or by recognition of the same in a decree of a civil court, to our mind, does not make any difference and the same principle would apply in considering whether, in such a case, the High Court in a reference can or cannot remand the case to the Appellate Tribunal for allowing a party to a case to urge a subsequent event and to adduce evidence in support of the same. Shri G. C. Sharma cited some other judgments also. It will suffice to say that none of these cases is in point and none of them is of any help to the case of the assessee. Some of these cases simply dealt with the question as to whether certain purposes can be said to be charitable purposes. In conclusion, we repel the said contention of the assessee's learned counsel and answer the questions in the negative, i.e., against the assessee and in favour of the Revenue. In the circumstances of the cases, we leave the parties to bear their own costs. Questions answered in the negative. - - TaxTMI - TMITax - Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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