S.P. Goyal, J.
1. These two Income-tax References Nos. 31 and 32 of 1977 have been made by the Income-tax Tribunal at the instance of the revenue. The two questions, one in each reference, referred to this court for determination are : I.T.R. No. 31 of 1977 :
' Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the assessee was a charitable trust and entitled to exemption under Section 11 ' LT.R. No. 32 of 1977 :
' Whether, on the facts and in the circumstances of the case, the Tribunal is right in upholding the Appellate Assistant Commissioner's order deleting the addition of Rs. 40,290 made by the Income-tax Officer '
2. The amount referred to in the second question is claimed to be chargeable by the revenue on the plea that the assessee-trust is a private trust. The answer to this question, therefore, also depends on the answer to the first question and so need not be separately dealt with.
3. The assessee is a trust known as Smt. Guryani Brij Ballabh Kaur Trust, Kartarpur. For the assessment year 1971-72, it was assessed as an association of persons because the ITO negatived the plea that it was a charitable trust. The finding of the ITO was confirmed, on appeal, by the AAC but was reversed, on second appeal, by the Appellate Tribunal. The Tribunal, after taking into consideration the various objects of the trust mentioned in the memorandum of association, held :
' It is amply clear from the perusal of the aforesaid objects of the assessee-trust that the purpose of the trust is to establish educational institutions and give relief to the poor people. Advancement of object of general public utility is also included in the trust. The lower authorities laid undue emphasis on the fact that in the memorandum of association,the first object is to repair and maintain the samadhs of the ancestors of the family of the Guru of Kartarpur and to hold mela to commemorate the memory of the late Shrimati Guryani Brijballabh Kaur. Because this object has come first in the list of objects, the lower authorities treated that as the main object of the assessee-trust. The approach of the lower authorities is obviously erroneous. Merely because the object to repair and maintain the samadhs of the ancestors of the family of the Guru of Kartarpur and to hold mela every year to commemorate the memory of the late Shrimati Guryani Brijballabh Kaur and to bear the expenses of the said mela out of the funds of the trust, has been stated in the beginning of the list of the objects, it cannot be concluded that it is the main object of the trust. Whether the object of the trust has been stated in the beginning, in the middle or in the end, it does not determine the factor of the main object. What is the main object This question will have to be considered in the totality of the objects of the trust. There is nothing to show that the funds of the trust can be utilised for personal purposes by the trustees. From a perusal of the objects, it is clear that the funds of the trust are to be utilised for charitable purposes ;as defined in Section 2, Clause (15), of the Act 1961.'
4. Mr. Awasthy, the learned counsel for the revenue, has advanced a two-fold argument to challenge the finding of the Tribunal, namely, that the first two objects of the trust (a) to repair and maintain the samadhs of the ancestors of the family of the Guru of Kartarpur, and (b) the holding of mela on 20th August of every year to commemorate the memory of the late Shrimati Guryani Brijballabh Kaur and to bear the expenses of the said mela out of the funds of the trust, are non-religious and secular purposes and there being no direction in the memorandum of association as to the portion of the amount which may be spent on these purposes, the whole trust should be held to be a non-charitable trust and that the income spent on the said two purposes, in any case, should be held chargeable having been spent for secular purposes. In support of his contentions, the learned counsel relied on two decisions of the Supreme Court in CIT v. Sri fagannath Jew : 107ITR9(SC) and Dharmaposhanam Co. v. CIT : 114ITR463(SC) . The second contention, however, need not detain us because this matter was never raised before either of the authorities below nor is it covered by the two questions referred to above. Moreover, facts relevant for the disposal of this contention are not available in the statement of the case. We, therefore, do not propose to take notice of the same.
5. As regards the first contention, a similar argument was raised before the Tribunal but was negatived with the observations that if the public at large had its faith in the samadhs then their maintenance would not be for private purpose nor holding of the mela of any private utility. We fully agree with the view of the Tribunal. The contention of the learned counselfor the revenue would have certainly prevailed if the samadhs were those of ordinary persons having no sanctity for the general public. But where the samadhs are held in reverence and people at large come to pay homage and worship at the samadhs, the maintenance of the same would certainly be a public purpose of religious nature. Similarly, the purpose of holding of mela at such samadhs is to propagate and remind the people of the teachings of the Guru in whose memory the mela is held. This, again, would be a religious and not a secular purpose as advocated by Mr. Awasthy. We are, therefore, unable to agree with the learned counsel for the revenue that the maintenance of the samadhs and the holding of the mela is a non-religious and secular purpose. But even if it may be accepted for the sake of argument that these are secular purposes still the trust cannot be held to be a non-charitable trust because as held in Sri Jagannath Jew's case : 107ITR9(SC) , the purpose of the trust is to be determined from the dominant intention of its creator and not from its one or two isolated objects. From the perusal of the various objects mentioned in the memorandum of association, we fully agree with the view of the Tribunal that the paramount purpose of the trust is to establish educational institutions and give relief to the poor people. The second limb of the argument that there being no direction as to what proportion of the income was to be utilised for the various objects of the trust and that the trustees may utilise the whole of the income for non-religious purposes has, therefore, no bearing on the present question. Otherwise also, even though the maintenance of the samadhs and the holding of the mela are mentioned as two of the objects of the trust, the trustees are not bound to spend any income on these objects. In CIT v. D. D. Deshpande 0043/1975 : 102ITR390(Bom) , a provision had been made in the trust deed where the settlor had expressed a desire to give financial aid to the poor members of the family of the settlor and their descendants but as the dominant object of the trust was found to be of religious and charitable nature, it was held that the express desire of the trustees to give financial aid to the poor members of the family of the settlor and their descendants without any fetter on the powers of the trustees to utilize the income for charitable purpose would not be sufficient to hold that the trust was not a religious or a charitable one. The paramount object of the trust having been found to be of religious and charitable nature, mentioning of the said two objects would not, therefore, render the trust to be non-charitable.
6. In the result, both the questions are answered in the affirmative, in favour of the assessee and against the revenue. The respondent shall also be entitled to its costs which are assessed at Rs. 250.
Bhopinber Singh Dhillon, J.
7. I agree.