Y.R.MEENA, J. - (1.) BY these two applications, it is prayed that the Tribunal may be directed to draw up a statement of case and refer the following questions for the opinion of this Court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the provisions of S. 164(1) itself are not applicable and both the beneficiaries and their shares are known and determinate ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding that the decision of AAC about the charging of rate of tax by treating the assessee as an AOP on the rates applicable to the income of such association?"
(2.) SINCE common questions are involved, we dispose of them by this common order. The assessee is a trust which was created by an instrument of deed dt. 22nd June, 1977 by trustees Shri Manmal Babel, Smt. Morat Kanwar Babel, Shri Nawal Kishore Babel and Shri Gautam Chand Babel from out of the estate of late Shri Poonam Chand Babel who expired on 25th Jan., 1976. During assessment, the ITO found that beneficiaries under the trust were indeterminate and their interest was also contingent. Therefore, assessee trust is a discretionary trust and liable to tax at the rate of 65% in terms of provisions of S. 164(1)(ii) of the IT Act. The trust was taxed accordingly. In appeal, the AAC has taxed at the rate applicable in case of AOP. That view has been upheld by the Tribunal. Thereafter, the CIT has moved an application under S. 256(1) requesting the Tribunal to refer the aforesaid questions for the opinion of this Court. At the request of CIT, draft statement was prepared but no annexures were filed as required for sending the statement of the case to this Court and finally the applications under S. 256(1) were rejected. Against that, the Department has filed applications under S. 256(2) before this Court and prayed that Tribunal be directed to refer the aforesaid questions.
(3.) MR . Ranka, learned counsel for the assessee, has brought to our notice that identical issue was considered by this Court in the case of the same assessee wherein the view has been taken that application under S. 256(2) of the IT Act is not maintainable against the rejection of the Tribunal passed on the application under S. 256(1).;