Judgment:

Dr. Arijit Pasayat, J.

1. Challenge in these appeals in each case is to the order passed by a Division Bench of the Allahabad High Court answering the reference made by the Income Tax Appellate Tribunal, Allahabad Bench (in short the ‘ITAT) under Section 256(1) of the Income Tax Act, 1961 (in short the ‘Act) in favour of the assessee and against the revenue. For answering the references in favour of the assessee the High Court relied upon its judgment for two previous assessment years i.e. 197273 and 1973-74 in the assessees case which is reported in Commissioner of Income Tax v. J.K. Charitable Trust (1992 (196) IIR 31). The present dispute relates to several assessment years, i.e. 1972-73 (in respect of an assessment re done under Section 147(1) of the Act) and assessment years 1975-76 to 1982-83.

2. Learned counsel for the revenue appellant submitted that each assessment year is a separate assessment unit and the factual scenario has to be seen. Dispute relates to the question whether the respondent, assessees trust was hit by the provisions of Section 13(1)(c) and 13(2)(a)(f) & (h) of the Act and therefore cannot be given the benefit of exemption provided under Section 11 of the Act.

3. Learned counsel for the assessee submitted that for several years no appeal has been filed even though the factual position is the same i.e. for the assessment years 1983-84 upto assessment year 2007-08. Even no appeal was filed against the decision reported in [1992(196) ITR 31] (supra). It is also pointed out that several other High Courts have taken a similar view and no appeal was preferred by the revenue against any of the judgments of the different High Courts. Reference is made to the decisions reported in CIT, Bombay City VII v. Trustees of the Jadi Trust [(1982) 133 ITR 494], CIT v. Hindusthan Charity Trust [(1983) 139 ITR 913], CIT v. Sarladevi Sarabhai Trust No.2 [1988 (172) ITR 698] and CIT v. Nirmala Bakubhai Foundation [1996 (226) ITR 394]. The first two judgments have been rendered by the Bombay and Calcutta High Court respectively while the other two decisions are of the Gujarat High Court.

4. Learned counsel for the revenue submitted that even though appeal has not been preferred in respect of some assessment years, that does not create a bar for the revenue filing an appeal for other assessment years. Reliance is placed on a decision of this Court in C.K. Gagadharan & Anr. v. Commissioner of Income Tax [(2008) 304 ITR 61 (SC)].

5. The factual scenario is undisputed that for a large number of assessment years no appeal has been filed.

6. The basic question therefore is whether the revenue can be precluded from filing an appeal even though in respect of some other years involving identical dispute no appeal is filed.

7. For deciding the issue a few decisions of this Court need to be noted.

8. In Bharat Sanchar Nigam Ltd. v. Union of India (2006 (3) SCC 1) it was noted as follows:

"The decisions cited have uniformly held that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar courts from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position. The reason why the courts have held parties to the opinion expressed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi-judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per i