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TMI Blog1977 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... erregum from 1942 to 1949 these funds were in the custody of Shri Badrinarayan Bagaraia and part therefore was lying in some Dharamada accounts with some firm. In order to effectuate and fulfil the wish and desire of his great grand mother Shri Badrinarayan Bagaria created a trust on 7th Jan., 1949 by an indenture, terms and conditions of which are recorded in the orders of the lower authorities and need not be reproduced here. There was a deed of rectification drawn on 21st Sept., 1954. The trust was considered by the IT authorities as religious and charitable trust and treated accordingly for the asst. yrs. 1950-51 to 1969-70. We have been informed that the assessment for the asst. yr. 1970-71 is before the AAC in appeal. The present appeals relate to the asst. yrs. 1971-72, 1972-73 1973-74. 3. In these circumstances, after a lapse of two decades, the ITO dug up some old record and after going through various statements in respect of the assessment of this group and the scrutiny of the trust deed dt. 7th Jan., 1949 came to the following conclusions. "(i) That the great grand mother was the author of the alleged trust; (ii) That the grand mother was the first trustee of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture dt. 7th Jan., 1949 only. 4. The learned counsel for the Revenue contended that we have to see whether the essential ingredients for creation of a valid trust, under the Indian Trusts Act are present in the deed dt. 7th Jan., 1949, and particularly whether there was any corpus with Shri Bagaria which could be invested with the character of the trust because the Supreme Court (AIR 1974 SC 1084) has held that for the purpose of finding out the validity of a trust in such cases as that of the assessee the same principles will apply as under the Indian Trust Act. He submitted that under the Indian Trusts Act a trust is created when the author of the trust indicates an intention to create a trust, the purpose of the trust, the beneficiaries and the trust property which is to be transferred to the trustees. He pointed out that the deed dt. 7th Jan., 1949 does not show its acceptance by the beneficiaries and is, therefore, invalid. He further submitted before us that the trust created by the indenture dt. 7th Jan., 1949 by Shri Badri Narayan Bagaria is not a valid trust because Shri Bagaria was not the owner of the property which was impressed with character of the corpus of the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrator of the funds, with implied consent of others since there was no objection from any side. He was thus absolute owner with the only rider that the funds would be utilised for charitable purpose only. He discharged this duty by creation of the trust on 7th Jan., 49 by a proper and valid instrument as per Indian Trusts Act and took upon himself along with other brothers, the borden of being the first trustee. Thus there were all the essentials of a valid trust in the indenture dt. 7th Jan., 1949, i.e. an intention, now effectuated in writings, the corpus, the beneficiaries being the public at large and the trustees to whom corpus was entrusted. 7. The learned counsel for the assessee further pointed out that the existence of the corpus was accepted by the revenue when that very corpus, in fact, was brought to tax in the asst. yr. 1949-50 under some settlement scheme and, therefore, its ownership and physical existence could not be challenged or denied now two decades later as done by the revenue. 8. Referring to the criticism of the deed with particular reference to clause 3(c) he submitted that the approach of the revenue was wholly untenable because the document rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of meagre expenses. Not only that the assessee had kept the corpus of the trust properly invested for better returns and the board of the trustees included may of standing even for public life and, therefore, there could not be any suggestion that on facts it is not a charitable trust. He further continued that so far as public reputation of this institution is concerned it is very high as is clear from various certificates brought on record by the assessee. In fact, he contended that this aspect of the matter has not been challenged by the authorities below at all. He thus emphasised on proved facts and circumstances of the case that there could not be but one inference that the trust created by an indenture dt. 7th Jan., 1949 is a valid charitable trust. It was in fact treated so by the authorities below for two decades. There is nothing to warrant a change of opinion after 20 years on same facts. The trust, he concluded, was and is a valid, charitable trust and entitled to exemption. The AAC was, therefore, fully justified in holding it so. His order may be confirmed. 10. We have carefully considered the facts and circumstances of the case along with the rival submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this could be done only if fresh facts came to light or earlier decisions were taken without taking into consideration material evidence and that an ITO cannot arbitrarily depart from the finding reached after due enquiry by his predecessor in office simply because the successor officer does not agree with the findings of the predecessor. This indeed is the issue before us. Is there any material to justify a change of view by Revenue above the validity of a document accepted and digested for twenty long years? In finding out this we have to remember the advice of the highest Court of this land that the Tribunal should be slow to depart from findings given on accepted facts in earlier years. 12. Now let us see what is the case of the Revenue for a departure from the earlier stand. There is nothing new that is brought into assessment order. The ITO refers to some disclosure made in 1950-51 which could show that the source of the corpus was not from the source as shown in the deed. This is clearly giving a go by to the findings of earlier assessment years starting from 1950-51 to 1969-70 and that too by a quirk of an argument on some facts which necessarily had passed through the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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