Jain Dharam Shala Charitable Trust vs Commissioner of Income Tax

D.K. Jain, J.—By these four connected applications u/s 256(2) of the income tax Act, 1961 (''the Act''), the assessee seeks a direction to the Tribunal to state a case and refer to this Court the following questions, stated to be questions of law, arising out of its common order in IT Appeal Nos. 2819 to 2821 and 5994 of 1989 pertaining to the assessment years 1983-84 to 1985-86 and 1988-89, respectively: 1. Whether, on the facts and circumstances of the case, the income tax Appellate Tribunal has misdirected itself in rejecting the application u/s 254 of the Act?

Whether the order of the Deputy Commissioner (Appeals) has been correctly interpreted by the learned Tribunal?

Whether, on the facts and circumstances of the case, the claim of the applicant under sections 11 and 12 of the income tax Act has been rightly rejected by the learned Tribunal?

The assessee claims to be a charitable trust, maintaining a Dharamshala for the use of general public. The trust was granted registration u/s 12A(a) of the Act as also benefit of sections 11 and 12 up to and including the assessment year 1982-83. It appears that during the course of assessment proceedings for the relevant assessment years, the ITO found that funds of the trust had been diverted in the form of advances to various trustees/interested persons/concerns falling within the category of prohibited persons u/s 13(3) of the Act at a low rate of interest; besides there were no adequate and proper back-up securities. The shares which were tendered as security were of Jain Tractors & Auto Spares (P.) Ltd., a closely-held company of the family members/relations of the trustees of the assessee-trust. He, therefore, held that there was violation of the provisions of section 13(1)(c), read with section 13(2)(a) and, accordingly, denied the benefit of section 11 of the Act to the trust. The first appellate authority, viz., Deputy Commissioner (Appeals), who had the occasion to go into the question of market value of shares of Jain Tractors & Auto Spares (P.) Ltd. in the case of another trust, viz., Paras Dass Jain Charitable Trust, floated by the same family members, held as under:

This is to be clearly seen that Shri Jain Dharamshala Charitable Trust, Shri Paras Dass Jain Charitable Trust, Jain Tractors & Auto Spares Pvt. Ltd., are concerns of Shri Paras Dass Jain and his family members, i.e., Jain Family. There is no market for these shares as the company is in loss and nobody wants to buy these. Under these circumstances, this is clear that their market value is zero and they cannot stand as security for anything. This is merely an eyewash, a fraud with the revenue and the trust. Its security can be judged only by the fact if the persons to whom the money is advanced denies to pay back money, whether the trust can recover the money. Clearly from the above there is no security at all. Under these circumstances, I decline to interfere with the order of ITO.

The second appeal filed by the assessee to the Tribunal was again unsuccessful. No reference application against the said order of the Tribunal was filed. However, the assessee moved applications u/s 254(2) of the Act for rectification of the order on the ground that there was a mistake apparent from the record inasmuch as a statement alleged to have been made by the assessee''s counsel before the Deputy Commissioner (Appeals) was never made and the Tribunal''s reliance thereon was erroneous and, secondly, the observations of the Tribunal to the effect that the plea of the assessee that the loans in question were also secured by equitable mortgage of the immovable properties of the debtors was taken for the first time before the Tribunal was also incorrect. While dismissing assessee''s applications, the observations of the Tribunal on the first ground were as under:

The concerned statement is referred to at page 5 of the order of the learned Deputy Commissioner (Appeals), which clearly shows that the said statement was made in connection with the hearing of the appeal that was disposed of by the order that was under appeal before the Tribunal.

At the time of the hearing by the Tribunal it was never contended by the learned counsel for the assessee that statement was not made by the assessee''s counsel before the learned Deputy Commissioner (Appeals) nor was any such ground raised in the memorandum of appeal. Therefore, the contention that that statement was made during the hearing of some other appeal is not made out and this denial cannot create a mistake in the Tribunal''s order.

On the second ground for rectification the Tribunal observed thus:

There is no discussion of any such security in the order of the first appellate authority and the Tribunal was of the opinion that this plea was taken for the first time before the Tribunal. In the present petition it is contended that such a plea was actually taken before the Deputy Commissioner (Appeals) and evidence was produced in support thereof. This contention does not find support from the order under appeal and as a matter of fact ground No. 3 raised in the memorandum of appeal before this Tribunal negatives the present contention.

Thereupon, the assessee made applications to the Tribunal for referring the questions of law arising out of its order refusing rectification. The applications were rejected. Hence the present applications.

Mr. B.N. Goswamy, the learned counsel for the assessee, while conceding that question No. 3 does not arise out of the order of the Tribunal refusing rectification, has vehemently urged before us that the aforementioned question Nos. 1 and 2 do arise out of the order of the Tribunal.

We do not agree. Apart from the fact that the above findings of the Tribunal on both the grounds for rectification are pure findings of fact, it is also clear from the relevant portion of the order of the Deputy Commissioner (Appeals), extracted above, that he was dealing with the question of market value of the shares of Jain Tractors & Auto Spares (P.) Ltd. and, therefore, whether the statement was made by the counsel in assessee''s appeal or in sister trust''s appeal is immaterial because the shares involved in both the cases were of the same company. We are of the view that no question of law arises out of the Tribunal''s order as there is no error apparent from the record. We feel that in the garb of an application for rectification, the assessee wants to re-open and reargue the whole matter, which is beyond the scope of section 254(2). Dismissed. There will be no order as to costs.