TMI Blog1983 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year in question having directly been made in the hands of the beneficiary, the Income-tax Appellate Tribunal was right in holding that the assessee was not entitled to earned income relief ? " The assessee is the Mutawalli of a wakf, Haji Lal Mohd. Biri Works and also one of the beneficiaries of the wakf. In the assessment year 1970-71, the disclosed income from the wakf was stated to be Rs. 1,51,534 after deducting a sum of Rs. 8,700 payable to the other beneficiary. In the assessment proceeding it was held that the assessee was the real owner of the business carried on in the name of the wakf. Consequently, the income of the wakf was treated as the assessee's income, subject to deduction of Rs. 8,700 payable to the other benefic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stood. The Appellate Tribunal held that the income accrued from the business in the above case could not be treated as earned income in the hands of the assessee. Therefore, the above two questions were referred to this court at the instance of the assessee. On behalf of the assessee, Mr. R. K. Gulati urged that the view taken in Haji Abdul Hameed v. CIT [1971] 82 ITR 495(All) is no longer good law, for, in a later decision concerning the same assessee, a Division Bench of this Court in Haji Abdul Hamid v. CIT [1980] 122 ITR 1000 (All), had taken a view that a beneficiary of a wakf would be entitled to earned income relief in respect of the income received from a business carried on by trustee of the wakf, as the business could be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether " earned income relief " can be denied to the beneficiaries of a waqf, when direct assessment is made on them. The Supreme Court held that in the case of trustees carrying on business, they are entitled to earned income relief on the basis that the income was referable to the business being carried on by the trustees. Mr M. Katju appearing for the Department contended that the earlier decision in [1971] 82 ITR 495 (All) (Haji Abdul Hameed v. CIT) was still good law and since that decision had not been set aside by the Supreme Court in the appeal filed by the assessee, the later Division Bench was bound to follow the earlier decision and in case it differed, the matter ought to have been referred to a larger Bench. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter to a larger Bench normally does not arise. Learned counsel for the Department desired us to follow the decision reported in [1971] 82 ITR 495 (Haji Abdul Hameed v. CIT) which is also between the parties. That decision is, however, not final and an appeal is pending in the Supreme Court. The contention raised by the learned counsel for the Department that the matter ought to be referred to a larger Bench, as there is a conflict between the two decisions, is not acceptable. The Supreme Court in its earlier decisions reported in Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 and Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83, had laid down that one Division Bench or a court of co-ordinate jurisdiction sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Division Bench in [1980] 122 ITR 1000, there is no point in referring the matter to a larger Bench. The other question is that, if there be two conflicting decisions of two co-ordinate courts, whether a co-ordinate Bench should refer the matter to a larger Bench or to follow the decision of one of the co-ordinate Benches. We are of the view that if there was a conflict of opinion on a question of law when the point has not been considered or decided by the Supreme Court, a reference to a larger Bench is called for, but, where the decision of a Division Bench is based on the law laid down by the Supreme Court on the point, referring the matter to a larger Bench would serve no purpose. Further, in the present case, the earlier de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
