JUDGMENT

C.S.P. Singh, J. - The Income Tax Appellate Tribunal. Delhi Bench "B", has in respect of the assessment years 1958-59 and 1959-60 referred the following question for our opinion :

"Whether, on the facts and in the circumstances of the case, the income from the properties in question covered by the deed of trust dated November 14, 1947, were exempt from Income Tax u/s 4(3) of the Indian Income Tax Act, 1922 ?"

2. The facts necessary for the decision of this question may now be stated. One Sri Chhadami Lal Jain, by a deed dated November 14, 1947, purported to create a trust known as "Chhadami Lal Jain Trust". In the preamble to the deed in question, reference is made to the necessity for building a college hostel and for maintaining an Aushadhalaya in Firozabad district, Agra. The relevant portion of the deed runs as follows :

"1. That the name of this trust shall be Chhadami Lal Jain Trust.

2. That the following institutions shall be under this Trust:

(a) Boarding House, (b) Dharamshala including temple, (c) Commercial and Industrial Institute, (d) Jain Religious School, (e) Jain Dispensary including Medicine Department, (f) Scholarship Fund, (g) Public Library and Reading Room.

3. That the expenses of the above Trust and those of fulfilling the objects mentioned above, will be met from the income of the following properties. I shall have no personal interest/concern with the income of the Trust nor shall it be utilised for my personal use. The same will be utilised solely for the purposes of the Trust."

3. Thereafter, details of three items of immovable property were given, viz., (a) a bungalow, (b) properties situated in village Sukhmalpur, Nizamabad, Sub-Division Firozabad, district Agra, and (c) a house situated in Mohalla Chhapati-Kalan, Firozabad, district Agra, where a dispensary called "Motilal Jain Aushadhalaya" was running. There was a note attached to this deed which stated that Rs. 18,000 was the maximum annual rental income of the aforesaid properties which were valued at Rs. 6,12,000. The deed purported to have been written out by the pen of one Master Sunharilal Jain, general attorney of Lala Chhadami Lal. The deed, it appears, was submitted u/s 32 of the Stamp Act to the Additional Collector and he issued a certificate under that section certifying that a sum of Rs. 28-2-0 was the proper stamp duty in respect of the deed and that the deed was duly stamped. This certificate of the Collector is dated 17th November, 1947. The deed was thereafter registered on the 30th December, 1947. The income from the properties which were mentioned in the trust deed was assessed in the hands of the Hindu undivided family up to the assessment year 1949. In the year 1949-50, a part of the said income was exempted by the Income Tax Officer, Firozabad, holding that the trust was exempt u/s 4(3)(i) of the Indian Income Tax Act, 1922. In the assessment years 1958-59 and 1959-60, with which the present reference is concerned, the Income Tax Officer took the view that inasmuch as the income from the property was transferred to the trust and not the properties, no exemption could be granted in respect of the income u/s 4(3)(i) of the Act. On appeal, the Appellate Assistant Commissioner confirmed the view of the Income Tax Officer. The assessee, thereafter, filed an appeal before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal considered the trust deed and came to the conclusion that the wordings of the deed were not clear and as such there was scope for doubt as to whether the properties mentioned in the deed were the subject-matter of trust or only the income of the aforesaid properties. It, however, on a consideration of a number of circumstances, which we shall presently set out, came to the conclusion that the intention of the founder of the trust was to create a trust in respect of the properties detailed in the deed and not only in respect of their income. The various circumstances relied upon by the Tribunal