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TMI Blog1966 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the following questions, which are common to all the three references, have been referred to us for our opinion: "(1) Whether, on the facts and in the circumstances of the case, the Board was competent in the course of appeals preferred by the assessee to question the finding of the Assistant Commissioner of Taxes to the effect that the amounts donated to 'Jalan Charity Trust' were amounts actually spent for 'charitable purposes' within the meaning of the Assam Agricultural Income-tax Act ? (2) Whether, on the facts and in the circumstances of the case, the Board was justified in holding that only 60 per cent. of the amounts actually spent by the assessee for 'charitable purposes' from the agricultural income was admissible as deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hands of the appellant for charitable purposes. On having come to this finding on the facts before him, the learned Assistant Commissioner granted an exemption of 60% of the amount claimed by the assessee in each case to have been spent by them for the Jalan Charity Trust. Not satisfied with the 60% exemption that was granted to them by the Assistant Commissioner, the assessees took the matter up in appeal to the Board of Revenue and the Board of Revenue while confirming the decision of the Assistant Commissioner held that only 60% of the income which is treated as agricultural income would be the basis for granting the exemption in regard to the contribution to the charitable trust. So holding, they left the finding of the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly allowed not only to contest the claim of the assessees to exemption given in regard to the 40 per cent. of the contribution to the charitable trust in question but was also apparently heard on the question whether the Assistant Commissioner's findings were correct. We feel that that privilege should not have been extended to the department as there was no provision for doing so. When the legislature advisedly gave a right of appeal to the assessee and did not, pari passu, give a right of appeal to the department, it is obvious that the intention of the legislature was not to give the right of appeal to the department, and unless a right of appeal existed, the department would not have had the opportunity of questioning the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us to enable us to dispose of the references. Another point which has been relied on by the learned Advocate-General is that whether a trust is a charitable trust or not is a pure question of law and, therefore, the Board of Revenue could have gone into that question on appeal by the assessee and if they took a different view on the question of law they could have interfered with the decision of the Assistant Commissioner. In support of this, the learned Advocate-General invited our attention to section 24 of the Act which enabled the Assistant Commissioner, on appeal by the assessee to him, to enhance the assessment notwithstanding that there was no appeal by the department in regard to the assessment. But sufficient safeguards have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f compulsion or coercion or legal obligation. That would, in our opinion, be reading something in the section which is not there and for that reason, if not for others, we are unable to accept that argument. The real and the only question that fell to be determined by the Board of Revenue on the appeal by the assessee was whether it was open to the assessees to claim exemption in regard to their contribution to the charitable trust only on a proportionate basis on which the liability to agricultural income-tax and income-tax is determined. It is common knowledge that where agricultural income is derived side by side with the industrial activity, like the production and manufacture of tea, 60 per cent. of the income, by virtue of the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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