2013 (11) TMI 1438

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.... pending in the Court, the Commissioner of Income Tax has raised the following questions of law to be decided by this Court:- "ITR No.149 of 1989 "1) Whether in law and on facts of the case, the I.T.A.T. was justified in allowing relief to the assessee u/s 80G of the Income-tax Act, 1961, on the donation of Rs.50,000/- paid to Sherwani Charitable Trust? ITR No.150 of 1989 "1. Whether in law and circumstances of the case the ITAT was justified in deleting the addition of Rs.13,398/- made as notional trustee's remuneration from M/s Shervani Charitable Trust, Allahabad, for the year under consideration? 2. Whether in law and circumstances of the case the ITAT was justified in following the order of the Settlement Commission hold....

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....tee and that the trust named M/s Shervani Charitable Trust was wholly Charitable Trust was followed, despite the fact that the matter was still sub-judice and a Special Leave Petition was pending before the Hon'ble Supreme Court of India, New Delhi, against the said order of the Settlement Commission?" 3. Shri Shambhu Chopra, learned counsel appearing for the income tax department submits that questions of law raised as above in these appeals are covered by the judgment of the Supreme Court in Civil Appeal No.6874 of 2000 decided on 9th October, 2001 between the same parties. The Supreme Court held that a fraud was played by rectification of the trust deed by following the very object of the trust, and the trust deed must be read as it o....

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....hat they will not be affected by the judgment of the Supreme Court. 6. In respect of same trust this Court had in Sherwani Charitable Trust v. Commissioner of Income Tax, U.P. (ITR No.340 of 1963) decided on July 6th, 1967, considering Clause 2 A, 2 B of the trust deed as amended by resolutions passed by Board of Trustees dated 17.5.1956 held that these clauses providing for expenditure for the members of the family and relatives for maintenance give discretion to the trustees, were not for charitable purposes. The discretion given to the trustees was unqualified by any consideration of indigence or poverty. They had discretion to grant amounts to such persons as they choose. The Court held relying upon CIT v. M. Jamal Mohd. Sahib, 1941 ....