Ajit K. Sengupta, J. - (1.) By these references under the Income-tax Act, 1961 (in short referred to as "the Act"), at the instance of both the Commissioner of Income-tax and the assessee arising out of a common order of the Calcutta Bench of the Income-tax Appellate Tribunal for the assessment years 1971-72, 1972-73, 1973-74 and 1974-75, the following questions of law have been referred for the decision of this court: (A) Income-tax Reference No. 313 of 1980--at the instance of the Commissioner of Income-tax under Section 256(1) of the Act: "(1) Whether, on the facts and in the circumstances of the case and on a proper construction of the deed of settlement dated May 20, 1943, the transfer of the aforesaid shares by the trustees of Raja Baldeodas Birla Santatikosh is valid or void or voidable ? (2) Whether, on the facts and in the circumstances of the case, even assuming that the transfer of the shares was void, the income from the said shares and accretions which were in fact not received by the assessee but by the Birla Jankalyan Trust was assessable in its hands ?" (B) Income-tax Reference No. 313 of 1980--at the instance of the assessee--under Section 256(1) of the Act : "(1) Whether, on the facts and in the circumstances of the case and on a proper construction of the deed of settlement dated May 20, 1943, the trustees of Raja Baldeodas Birla Santatikosh could make a donation of 3,75,000 ordinary shares in Jiyajeerao Cotton Mills Ltd. and other shares on March 30, 1964, to Birla Jankalyan Trust, a public charitable trust, for its objects ? (2) Whether, on the facts and in the circumstances of the case and on a proper interpretation of the deed of settlement dated May 20, 1943, the Tribunal was right in holding that the consent of minor beneficiaries and/or competent civil court on their behalf was necessary for making a donation of the shares in Jiyajeerao Cotton Mills Ltd. and other shares to the trustees of Birla Jankalyan Trust ? (3) Whether, on the facts and in the circumstances of the case and on a proper interpretation of the deed of trust dated May 20, 1943, and the provisions of the Indian Trusts Act, 1882, the Tribunal was right in holding that the trustees could not exercise their discretion to choose or exclude a particular beneficiary or class of beneficiaries and to dispose of the trust fund in accordance with the directions of the beneficiaries chosen ?" (C) Income-tax Reference No. 37 of 1984--at the instance of the assessee--under Section 256(2) of the Act: "Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that Ujjain General Trading Society Ltd. did not give the shares of Jiyajeerao Cotton Mills Ltd. to the trustees of Raja Baldeodas Birla Santatikosh for useful objects and that there was no trust within trust is vitiated in law having been arrived at without any material and/or evidence and/or by ignoring relevant materials ?"
(2.) In all these references, the assessee is a private discretionary trust constituted under a deed of settlement dated May 20, 1943, and named "Raja Baldeodas Birla Santatikosh" (hereinafter referred to as the "asses-see-trust").
(3.) Question No. 1 raised by the Commissioner of Income-tax and the questions raised by the assessee-trust substantially involve the same issue, that is to say, the validity of donation of certain shares made by the trustees of the assessee-trust on March 30, 1964, to Birla Jankalyan Trust (hereinafter referred to as the "donee-trust"). Question No. 2 raised by the Commissioner of Income-tax involves the issue of assessability of the income and accretions arising out of the said donated shares in the hands of the assessee-trust after the date of donation.;