JUDGMENT
B. R. ARORA, J. :
The Revenue, by this application under s. 256(2) of the IT Act has prayed that the Tribunal, Jaipur Bench, Jaipur (Camp at Jodhpur) may be directed to refer the following questions of law for the opinion of this Court which arises out of the order dt. 16th Jan., 1991 passed by the Tribunal :
“(1) Whether, in regard to the facts and circumstances of the case, the Tribunal was justified in holding that if the learned CIT was willing to entertain the assessee-trusts application for grant of registration under s. 12A of the IT Act, 1961 and had granted registration to it, he should have condoned the delay which the assessee trust has prayed for, in view of the following facts :
(i) that to grant registration and to condone the delay or not is the sole prerogative of the CIT which is not appealable and thus the Tribunal has grossly erred in travelling beyond the ambit of its jurisdiction laid down by the Act;
(ii) the specific provision has been brought in the enactment by way of proviso to provisions of s. 12A(a) of the IT Act, 1961 for the CIT to examine each and every case and each and every circumstance individually to justify as to whether the delay in filing application for condonation of delay is justified or not and for this only the CIT is authorised by the IT Act and his decision is final. By granting registration w.e.f. 4th Dec., 1986 the CIT arrived at a conclusion that the circumstances mentioned by the assessee trust for the delay prior to making application on 4th Dec., 1986 were not convincing to condone the delay but the CIT has also been judicious in granting registration with effect from the date of filing of the application, i.e., 4th Dec., 1986 only in the interest of justice and to avoid inconvenience and harassment to the applicant-trust. Law does not permit the learned bench of Tribunal to record a contrary finding over the decision of CIT in this respect and, therefore, the Tribunals decision is grossly erroneous and unjustified.
(2) Whether the Tribunal was justified in arriving at the conclusion after being impressed by the fact that the Dy. CIT, Udaipur Range, Udaipur, through over sight mentioned in his directions under s. 144A that the application for grant of registration was submitted to the CIT after service of notices under s. 148 in view of the fact that though the application for grant of registration was submitted to the CIT prior to service of notice under s. 148 but the proceedings for issue of notices under s. 148 were started in December, 1986 itself as the matter was referred to the CIT for his prior sanction and it was not beyond the reach of the assessee to come across the fact of going on of the proceedings for issue of notices under s. 148 and also the fact that the enquiry proceedings were going on from 7th May, 1984 and assessment proceedings for the asst. yr. 1984-85 were also in progress prior to submission of the application for grant of registration to the CIT by the assessee-trust.
(3) Whether, in the facts and circumstances of the case, the Tribunal was justified in holding that there was on obligation on the part of the assessee-trust in terms of s. 12A(b) to furnish audited accounts in Form No. 10B as the income of the assessee-trust did not exceed Rs. 25,000 in view of the fact that the gross receipts of the assessee-trust forming income of the assessee-trust was much more than Rs. 25,000 unless the assessee-trust categorically proved that the donations were towards corpus and as the assessee failed to prove that the donations were towards corpus and the trust was not registered under s. 12A during the accounting periods relevant to the assessment years under consideration, the total receipts constituted of Rs. 1,84,907, Rs. 86,040 and Rs. 4330 were income of the assessee-trust and as such the provisions of s. 12A(b) were applicable to the assessee-trust and since the assessee-trust did not furnish copies of the audited accounts within the prescribed time because of non-fulfilment of requirements laid down by s. 12A of the IT Act, 1961, the assessee-trust was not entitled for registration for the asst. yrs. 1979-80, 1980-81 and 1981-82.
(4) Whether the Tribunal was justified in accepting the averment of the assessee blankly without cross-verification from the record to the effect that the receipts of the donations dt. 1st Aug., 1978, 9th Aug., 1978 and 1st Aug., 1978 pertaining to Svs. Harak Chand, Gulab Chand, Ugamchand Venachand and Mahendra Kumar Duli Chand were signed by the doners and as such donations were towards specific purpose which constituted corpus of the trust in total contrast to the fact that in his statement dt. 15th Oct., 1987 recorded by the then ITO, Sumerpur, in reply to the question No. 1, Shri Chouthmal, trustee, after going through the counterfoils of all the receipt books for the account periods relevant to the asst. yrs. 1979-80, 1980-81 and 1981-82 clearly admitted and confirmed that none of the receipts bore signatures of the doner from which the assessee could not establish that there was any donation from any person, the receipt in whose name has been shown by the assessee-trust and the donation was for the object shown in the so-called receipt in the absence of which the receipt of so-called donation would be treated as general receipt subject to provisions of s. 12A. May it be what generally it is in the cases of trusts that somebody puts his unaccounted income in guise of receipt shown in non-existent and fictitious names and, therefore, prior to coming to at any conclusion that the donation is towards any specific purpose, the confirmation of donor about amount having been donated by him towards the purpose shown is necessary which lacked in the instant case and in absence of which the only conclusion which can be drawn is that the so-called donations were general donations without any direction for specific purpose.
(5) Whether the Tribunal Bench was justified in giving the finding that the so-called donations were towards corpus on the basis of record tempered after producing before ITO vitally effecting the decision as discussed in preceeding paras.”
2. The assessee Shri Vasu Puziya Jain Derashar Pedi Undri, Post Sumerpur, district Pali, is a trust constituted under the Trust Deed dt. 4th Dec., 1977. For the asst. yrs. 1979-80, 1980-81 and 1981-82, the assessee did not file any return and, therefore, the ITO, on 13th Feb., 1987, issued notices to the assessee under s. 148 of the IT Act. The assessee, in response to these notices, filed returns for these assessment years under the Voluntary Disclosure Scheme on 30th March, 1987. The assessee, for these assessment years, declared the income of Rs. 10,100, Rs. 10,100 and Rs. 12,100. During these assessment years, the assessee received donation of Rs. 1,84,907, Rs. 86,037 and Rs. 44,353 which were claimed by the assessee to be the corpus being for the construction of a temple. The ITO referred the matter to the Dy. CIT, Udaipur for direction under s. 144A of the Act and the directions were issued to him by the Dy. CIT on 19th Dec., 1986. The ITO, following the said directions, added the donation amounts of Rs. 1,84,907, Rs. 86,037 and Rs. 44,353 as the income of the assessee in these assessment years. The ITO, also, observed that since the income for the assessment years in question exceeds Rs. 25,000, the accounts of the trust were, also, required to be audited by an accountant.
3. Aggrieved with the order dt. 31st March, 1989 passed by the ITO, the assessee preferred appeals before the CIT(A), Jodhpur. The CIT(A), by his order dt. 27th July, 1989 dismissed the appeals filed by the assessee by holding that the assessments so finalised are in order and the income has been, which has been subjected to tax in all these years, on a correct footing and calls for no interference.
4. Aggrieved with the order dt. 27th July, 1989 passed by the CIT(A), Jodhpur, the assessee preferred three appeals before the Tribunal, Jaipur Bench, Jaipur and the Tribunal, by its order dt. 16th Jan., 1991, partly allowed the appeals filed by the assessee. The Revenue thereafter filed an application under s. 256(1) of the Act before the Tribunal to refer the questions of law mentioned in para 1 above for the opinion of this Court. The Tribunal dismissed the application under s. 256(1) filed by the Revenue with the following observations :
“Questions No. 1 and 2 :
We, however, find that it was on consideration of the relevant facts and appreciation of the evidence and material on record that the Tribunal had held that the registration granted to the assessee-trust was effective from the date of its inception on 4th Dec., 1977. To us it is purely a finding of fact and such finding does not give rise to any question of law fit for reference.”
“Proposed question No. 3 relates to assessees obligation under s. 12A(b) to furnish audited accounts in Form No. 10B as the income of the assessee-trust. Findings of fact and the conclusions drawn from such findings do not give rise, in our opinion, to any question of law fit for reference. We, therefore, decline reference on proposed question No. 3, also.”
“Proposed question Nos. 4 and 5 relate to treating donation made to the assessee trust as being towards specific purposes. The Tribunal made a reapprove of all these evidences and after stating certain principles of law enunciated in various decisions came to the conclusion that the donations had been made by the donors for specific purposes being construction of temple and, therefore, such donations were in fact corpus donations. Again, this is a finding of fact and such finding does not give rise to any question of law fit for reference.”
The Tribunal further observed that “none of the proposed questions as set-out in the annexure of the reference applications are questions of law fit for reference. We, therefore, decline reference on any of them.”
5. The contention of the learned counsel for the Revenue is that the delay was not under consideration before the Tribunal and the order of the CIT was not under challenge before the Tribunal as no appeal against the order of the CIT lay before the Tribunal. These points raised by the Revenue do not arise out of the order passed by the Tribunal. So far as the five questions proposed by the Revenue, for which it has been prayed that the Tribunal may be directed to refer those questions for the opinion of this Court, are concerned, they are purely questions of fact and no question of law arises, on which a reference may be called. The Tribunal decided the appeals by its judgment dt. 16th Jan., 1991. While dealing with the question of registration, the Tribunal held as under :
“The assessee is, therefore, right in pointing out that the registration has been granted on 13th Feb., 1987. Under s. 12 it envisages from the very inception of the trust, i.e., from 4th Dec., 1977. The factum of granting registration finds place in the direction of the Dy. CIT(A). Thus, the assessee-trust, being registered, there was no impediment to the application of the provisions of ss. 11 and 12 in relation thereto.”
Dealing with the question of audit of the accounts of the trust, the Tribunal held as under :
“We would presently find that since the total income of the trust as computed under the IT Act, 1961 without giving effect to the provisions of ss. 11 and 12, do not exceed Rs. 25,000 for any of the assessment years in question, there was no obligation on the part of the assessee-trust, in terms of s. 12A(b) to furnish audited accounts in Form No. 10B.”
The Tribunal, while determining the question of corpus donations, held as under :
“We are, therefore, of the view that on the basis of the material furnished by the assessee it had established that the voluntary contribution in question had been made with the specific direction that they shall form part of the corpus of the trust and, therefore, they could not have been treated as the income of the assessee. So treated, since the income of the assessee fell below Rs. 25,000 for each of the assessment years in question, there was no obligation on its part to furnish audited accounts in terms of s. 12A(b) as referred above.”
The Tribunal, while deciding the issue of limitation, also, observed as under :
“The ground regarding assessment orders being time-barred not having been pressed at the time of hearing of the appeals before us no longer survives for our consideration.”
6. The findings recorded by the Tribunal in the judgment dt. 16th Jan., 1991 are purely findings of fact and do not give rise to any question of law arising out of the order passed by the Tribunal. The Tribunal was, therefore, justified in not referring the proposed questions mentioned in the application for the opinion of this Court as none of the proposed questions set out in the application, is a question of law fit for reference to the High Court. We are, also, of the opinion that no question of law arises out of the order dt. 16th Jan., 1991 passed by the Tribunal and the Tribunal was justified in rejecting the application.
7. In the result, we do not find any merit in this application under s. 256(2) of the IT Act, as no question of law arises out of the order passed by the Tribunal, and the same is hereby dismissed.