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TMI Blog1994 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... sons styled as Messrs. Laxmi Prasad and Sons. They stated that their father, late Laxmi Prasad, during his lifetime executed a registered will on November 24, 1977, whereunder after his death movable and immovable assets owned by him will become the property of his two sons named above. Sri Laxmi Prasad was reported to have died on April 30, 1979, and, consequently, the said movable and immovable property/assets willed to them became the property of both of his sons, namely, Sri Subhash Kumar and Sri Tagore Kumar, under the said will. A case has been built up by these two persons that in pursuance of the will dated November 24, 1977, executed by the late Sri Laxmi Prasad, a trust in the name and style of Messrs. Laxmi Prasad and Sons Ltd. was created by them. During the course of assessment proceedings, the Deputy Commissioner of Income-tax (Assessment), Allahabad, after a careful consideration of the facts found that the alleged trust or association of persons had enjoyed taxable income right from the assessment years 1982-83 to 1988-89. It has been held by the said authority that the registered will dated November 24, 1977, did not create any trust. The fact has also been notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner of Income-tax (Assessment), Allahabad, dated July 31, 1989, passed under sections 143(3)/148 of the 1961 Act pertaining to the assessment year 1982-83 filed an appeal before the Commissioner of Income-tax (Appeals), Allahabad, bearing Appeals Nos. 433/DC (Asstt.)/(Alld.) of 1989-90, on September 15, 1989. The appellate authority, vide its order dated May 18, 1990, allowed the said appeals and the order of the Deputy Commissioner of Income-tax (Assessment), Allahabad, making a protective assessment has been ordered to be cancelled and the assessment made by the said authority was ordered to be treated as a substantive assessment of the trust/association of persons, Messrs. Laxmi Prasad and Sons. Relying on its own decision in respect of the same assessee for the assessment year 1983-84 in Appeal No. 427/DC(A)/(Alld.) of 1989-90, dated December 18, 1989, it has been held that a trust was created under the will executed by the late Sri Laxmi Prasad and the income arising out of the estate held by him had to be assessed in the status of an association of persons in the hands of Sri Subhash Kumar (assessee) on a substantive basis. The Revenue against the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be made as an association of persons. From the facts mentioned above, we find that the findings arrived at by the Tribunal confirming the order of the learned Commissioner of Income-tax (Appeals) is nothing but a finding of fact and the appreciation of the evidence on record and, in our opinion, no question of law arises out of the said order of the Tribunal. We accordingly decline to refer the alleged questions to the court for opinion." Now, against the aforesaid order of the Tribunal dated May 6, 1992, the Revenue has filed the present application under section 256(2) of the 1961 Act before this court on October 28, 1992. Learned counsel, Sri Shekher Srivastava, appearing for the Revenue, has argued that both the Commissioner of Income-tax (Appeals), Allahabad, and the Tribunal have completely misread and misconstrued the documents registered as will dated November 24, 1977, executed by the late Sri Laxmi Prasad. The findings of both the said authorities that a trust is contemplated under the aforesaid will is perverse on the face of it. The trust/association of persons which is alleged to have been created by the assessee in pursuance of the will dated November 24, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd we have also gone through the contents thereof. We are satisfied that nowhere in the said will the late Sri Laxmi Prasad directed creation of any trust. An important fact had been ignored by both the appellate authorities that under the will, neither the trust has been named, nor any word has been specifically stated for creation of a trust. Even by reading of the will, it does not come out that the late Sri Laxmi Prasad was even intending for creation of any trust whatsoever. The names of the trustees have also not been mentioned, nor has it been mentioned as to how the trust will be created and what will be its objects and who will be its trustees, etc. Both the appellate authorities have lost sight of the important question that the document has to be considered, construed and interpreted in the light of the surrounding facts which have come up on the record during the course of search or before passing the order of assessment. Admittedly, none of his sons, namely, Sri Subhash Kumar and Sri Tagore Kumar, have ever come up with the case that the creation of the trust was there prior to the date of the search made by the authorities of the Department of their business and res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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