PRAKASH, J. - (1.) THESE are two applications under S. 256(2) of the IT Act, 1961 relating to the asst. yrs. 1981-82 & 1982-83 which for the sake of convenience are disposed of together against the Tribunal's order dt. 28th Oct., 1986, refusing to make a statement of case on the following questions: "1. Whether the Tribunal has erred in holding that the income from letting of the residential houses to its members was income from other sources and not income from house property? 2. Whether the Tribunal without passing speaking order was wrong to hold that the income from letting of residential premises to its members was income from other sources when facts and material to give such finding had neither been discussed by the Tribunal nor in the order of the CIT (A) who merely followed his previous order for asst. yr. 1980-81, that order of the CIT (A) having been set aside by the Tribunal by its order dt. 19th Nov., 1984? 3. Whether the Tribunal has erred in law in holding that the income of the club on account of rent of building and furniture, etc., assessable under the head 'Other sources' was exempt from tax on the principle of mutuality?
(2.) THE assessee is a Club Ltd. Co. Assessee-company derives income from sales of wines, tobacco, catering, entrance fee, rent from property, games, sports, etc. The assessee let out the furnished rooms and thus received rental income. The question arose whether such income was taxable in the hands of the assessee. The Tribunal has clearly recorded a finding that for the asst yrs. 1978-79 and 1979-80 in IT Appeal Nos. 508 & 509 (Del) of 1983, the Tribunal passed an order in the case of assessee on 27th Oct., 1984 holding that the entire income from letting out of the houses was from the members of the club only. This is a finding of fact which cannot be interfered with by this Court. On these facts, the Tribunal held for the asst. yrs. 1978-79 & 1979-80 that on the principle of mutuality, income to the club from the members is not liable to tax. The principle of mutuality is equally applicable to a club which is a limited company and that being so income accruing to the club from the room rent received from the members is not taxable in the hands of the club and this point has become academic in view of several decisions of the Supreme Court. Which need not be reproduced in this order. So far as the question Nos. 1& 2 are concerned, the Tribunal clearly observed that no question was posed before it whether the rental income from the property belonging to the assessee was income from the property or income from other sources. The Tribunal observed in the impugned order: "Such a question was not even agitated before us and that is why there is no specific finding on this point. On the question whether the income in question was taxed as income from house property or as income from other sources, it appears that the Revenue did not want to contest this point."
(3.) HAVING so observed, the Tribunal took the view that question Nos. 1 and 2 do not arise from the Tribunal's order dt. 30th April, 1986. On these facts and circumstances, we are not inclined to ask the Tribunal to make a statement of the case on the question Nos. 1 & 2.;