G.L. Oza, J.
1. This is a reference made by the Income-tax Appellate Tribunal for answering the question :
' Whether, on the facts and in the circumstances of the case taken as a whole and on a true construction of the trust deed, the conclusions of the Tribunal that the trust is carrying on an activity for profit and that the assessee-trust is not a public religious or charitable trust and, therefore, its income is not exempt are sustainable in law '
2. The assessee is known as 'Shri Gopal Lalji Mandir Trust' and the deed of trust was executed on November 5, 1952, by Shri Brijmohandas and some others. According to the assessee, there is nothing in the trustdeed to show that the general 'public has a right in the temple nor is there anything to indicate that the general public is debarred from entering the, temple for worshipping the deity. The assessee, therefore, claimed that it was a public charitable trust and as such its income was exempt under Section 2(15) read with Section 11 of the I.T. Act, 1961. The ITO, after considering the relevant clauses of the deed of trust, came to the conclusion that the trust was a personal temple built for the benefit of the trustees and the members of the family and, therefore, was not entitled to exemption under Section 11 of the Act. On appeal, the AAC agreed with these findings and, on second appeal, the Tribunal also agreed with the findings arrived at by the AAC. Therefore, at the instance of the assessee, the Tribunal has made this reference.
3. Learned counsel for the assessee frankly conceded that the question, although it has been framed as one, is in two parts: one pertains to the trust carrying on an activity for profit, and the second part pertains to the trust not being a public religious or charitable trust. It was also frankly conceded by the learned counsel for the assessee that so far as the first part of the question, i.e., pertaining to the activities of the trust for profit, is concerned, it has not at all been examined by the Tribunal nor does it appear to have been raised. He, therefore, also conceded that the only 'question which deserves to be considered in this reference is:
'Whether, on the facts and in the circumstances of that case, taken as a whole and on a true construction of the trust deed, the conclusions of the Tribunal that the assessee trust is not a public religious or charitable trust and, therefore, its income is not exempt are sustainable in law ?'
4. Learned counsel for the Department also conceded that that part of the question pertaining to the activities of the trust for profit is a matter which was not considered by the Tribunal and,- therefore, could not be a question which could be referred to this court as it does not arise out of the order of the Tribunal.
5. It was contended by the learned counsel for the assessee that there is nothing in the trust deed to indicate that the temple or the dharmashala is not open to the public in general and that the benefits out of the trust property are not available to the public in general, and, therefore, the Tribunal was not right in drawing an inference from certain clauses of the trust deed alone, as the trust deed ought to have been read as a whole.
6. Learned counsel for the Department, on the other hand, contended that the deed of trust very clearly and categorically indicates that the trust is for the benefit only of the members of the family and further it has been categorically stated that it will be a private trust and the law regarding public trusts will not be applicable. It was also contendedthat the document also clearly states that if any rules are framed in future pertaining to the administration of a public trust, they shall also not apply to the trust in question. On these considerations, the Tribunal, having considered all the relevant material, came to the conclusion that the trust was a private trust and not a public charitable trust and the view taken by it cannot, therefore, be said to be erroneous.
7. A reading of the trust deed indicates that although it was executed in 1952, the temple was in existence even before and the deed was executed only in 1952. A perusal of the deed shows that all precautions were taken to exclude it from the operation of the Public Trusts Act. It also clearly stated that a trust is created for the religious benefit of its creators and their children in future and for the satisfaction of the desire of their predecessor. The manner in which the trustees will be appointed also clearly shows that an attempt has been made to keep it under the full control of the family; and Clauses 12, 13 and 14 (which start after Clause 24) clearly go to show that the trust is nothing but a private arrangement for the benefit of the family. In Clause 13 it is stated-
^^bZ'oj u djs fd VLVdrkZ ds dqVqac ij nqnSZodk le; vkos ijarq ;fn dksbZ ,slh n'kk gks vkSj VLVdrkZ ds o'k dk dksbZ lnL;dsyks/kke esa LFkkbZ o vLFkkbZ :i ls jguk pkgs rks eafnj esa jg ldsxk vkSj JhBkdqjth ds HkaMkj esa ls izkr% lk;a ,d egkizlkn dh iRry ikus dk vf/kdkjh gksxkA**
8. This clause clearly shows that a provision has been made for the members of the family in times of need to have a residence in the temple and also to have two meals a day. Clause 14 reads :
^^;g eafnj vkSj ;g VLV ,d fcYdqy futh izdkjdh oLrq gS D;ksafd ;g dsoy VLVdrkZ vkSj mudh larku dks /keZ&deZ; ds v/;kfRedykHk ds gsrq fuekZ.k fd;k x;k gSA bl dkj.k ;g okn fufoZokn fLFkj dh tkrh gS fdbl eafnj ij psfjVsfcy ;k fjfytl VLV [kqn ds fu;e ykxw ugha gksaxs vkSj u osdksbZ fu;e ykxw gksaxs tks ifCyd eafnj ds fy;s cus gksa ;k vkxs cuk;s tkosaA
9. It is thus clearly stated that the temple and the trust are completely private property and meant only for the creators of the trust and their children to derive religious benefit; and it has also been categorically stated that the provisions of the Public Religious Trusts Act will not be applicable to this trust. Even future laws and regulations will not be applicable. Clause 26 further provides that no donations or presents will be accepted in the temple from anyone except the family members of the creator of the trust and the reason stated is that this trust is completely a private property. These specific clauses clearly demonstrate the intention of the creator of the trust that it was created solely for the purpose of the members of the family and not for the public.
10. Learned counsel for the assessee, after reading other clauses of the trust deed, contended that it has been provided that charities to be given to those sadhus who come to the spot or to those who come on narmada parikrama have to be maintained as were being given even before the trust was created and this goes to show that the trust is a public charitable trust. Although the deed of trust does provide that such charities as were given before shall be continued, what has been provided specifically is that all this is meant for religious benefit of the members of the family only and, therefore, it has even been provided that no presents to the deity or donations to the trust will be accepted from any one except the members of the family. It appears that before the Tribunal there was no other material except the deed of trust which has been considered by it before coming to its conclusions. Having gone through the deed of trust at length, in our opinion, it cannot be said that the Tribunal committed any error. In our opinion, therefore, our answer to the question noted above is that, in the facts and circumstances of the case, the view taken by the Tribunal that the assessee-trust is not a public, religious or charitable trust and, therefore, its income is not exempt is the correct view and it cannot be said that it is untenable in law. Our answer to the question is, therefore, in the negative. In the circumstances of the case, parties are directed to bear their own costs.