Sabyasachi Mukharji, J.
1. It appears that the assessee is a trust. The assessment year in this reference is 1960-61. There was a trust. It applied for refund under Section 48 of the Indian I.T. Act, 1922, for the assessment year 1960-61, the relevant accounting period ending on March 31, 1960. The income derived by the trust was from dividends. The asses-see had paid on March 9, 1960, a sum of Rs. 18,950 to another trust called Lakshmi Nath Seva Trust. While the ITO scrutinised the statement filed, he came across this item. According to him, this Lakshmi Nath Seva Trust was a private trust. He observed that the assessee could not prove that the donation was for any public charitable or religious purpose. He, therefore, taxed the sum of Rs. 10,850 at the maximum rate.
2. Before the AAC, on appeal, the assessee contended that the donation to the trust was made under the belief that it was a charitable trust and that if a donation was made in good faith, it could not be said that the money had been applied for non-charitable purposes. In the alternative, it was pointed out that in the case of Shri Lakshmi Nath Seva Trust the AAC had held, in his order for the assessment year 1961-62, dated April 28, 1964, that the trust was a religious and charitable trust although he had dismissed the appeal of the said trust on the ground that the deed of endowment was not a valid document. The AAC in disposing of these contentions held that for getting the benefit of exemption, the onus was on the assessee to prove that the money contributed had been applied for religious am haritable purpose and that the assessee had failed to do so. Hence, the claim was considered to be not tenable.
3. Thereafter, the assessee went up on appeal to the Tribunal. It was submitted that the conclusion drawn by the I.T. authorities was wrong and that the trust had been held to be a valid public charitable trust by the Tribunal in its order in ITA No. 4143 of 1964-65, dated April 18, 1967. It was, therefore, urged that the basis of the reasoning of the ITO and the AAC could no longer be taken as valid. The Revenue submitted that the conclusion of the I.T. authorities on the materials on record was correct.
4. The Tribunal held, after considering the order dated April 18, 1967 in ITA No. 4143 of 1964-65, that the assessee could not be charged with having paid the amount for a non-charitable purpose. It, therefore, accepted the assessee's claim.
5. It appears further that on December 30, 1959, a deed of trust had been executed in the case of Shri Lakshmi Nath Seva Trust and the deed of trust was found to contain public charitable and religious objects. The Tribunal on February 8, 1961, held, when certain amounts were transferred to the accounts of the trust, that it could be said that the trustees held the amount for religious or charitable purpose and that the exemption under Section 4(5)(i) in respect of the income of the said trust would come into operation as on that date. It is the conclusion regarding the nature or character of the said trust which was followed in the order under reference. The Tribunal, on the present occasion, could not go into the question as to whether the terms of the Lakshmi Nath Seva Trust deed were in any manner void or uncertain as the trust deed was not before it in the present occasion.
6. In those circumstances, the following question has been referred to us :
'Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the assessee was entitled to exemption in respect of the sum of Rs. 10,850 paid to Shri Lakshmi Nath Seva Trust is right in law ?'
7. It may be that the Tribunal held (as it did,) in the facts and circumstances of the case that the case of Shri Lakshmi Nath Seva Trust was pending on a reference in the Hon'ble High Court. We are shown a copy of judgment of the Hon'ble Mr. Justice Deb and the Hon'ble Mr. Justice R. N. Pyne delivered on March 6, 1975, from which it appears that ITR No. is 125 of 1966 (CIT, West Bengal-I v. Shri Lakshmi Nath Seva Trust), wherein the question was as follows :
'Whether, on the facts and in the circumstances of the case, the Tribunal erred in refusing to permit the Department to raise a contention that the Trustees had a discretion to apply the income of the Trust for both charitable and non-charitable objects and, hence, the assessee is not entitled to exemption of its income under Section 4(3) of the Indian Income-tax Act, 1922 ?'
8. The matter was, therefore, remitted to the Tribunal to decide the question whether Lakshmi Nath Seva Trust was a charitable trust or not.
9. Learned advocate for the Revenue on instruction states that as far as his instruction went the Tribunal had held that the said Lakshmi Nath Seva Trust was a public charitable trust. He could not enlighten us any further whether the Revenue had taken any steps or not thereafter. If that is the position, and, further, in view of the fact that it is not disputed that the factual contention of the assessee was that it had paid on good faith to the representative, it is also not disputed before us, that whether it was charitable trust or not and whether it received money from the assessee for charitable purpose or not is not relevant for us ; in the facts and circumstances of the case, we are of the opinion that the conclusion of the Tribunal that the assessee was entitled to exemption in respect of the sum of Rs. 10,850 paid to Shri Lakshmi Nath Seva Trust was right in law.
10. The question is, therefore, answered in the affirmative and in favour of the assessee;
11. In the facts and circumstances of the case, each party will pay and bear its own costs.
Suhas Chandra Sen, J.
12. I agree.