Income-tax---

---Representative assessee---Special deduction -Interest on securities and income from dividends---"Individual", meaning of---Trustee of discretionary trust is an individual---Entitled to special deduction under S.80-L---Indian Income Tax Act, 1961, Ss.80-L, 160, 161 & 162.

A plain reading of sections 160 to 162 of the Income-tax Act, 1961, would go to show that a representative assessee has either to be an individual or an artificial juridical person, who is also equated with an individual. Under section 160(1)(iv) it is the trustee, who is the representative assessee. The trustee, therefore, has to be an individual or a group of individuals. Section 164 omits from its provisions section 161 which shows that section 164(1) does not supersede section 161 or section 162. A reading of section 164(1)(i) would go to show that it is by fiction of law that the income of the beneficiary is to be treated as income of an association of persons for the purpose of charging tax. This legal sanction is available only for the purpose of charging the tax on the total income that is determined in the case of a trust. Section 164 does not provide how the total income of the representative assessee is to be computed. Therefore, the provisions relating to computation of income would be applicable even in a case where the representative assessee has to be assessed under section 164.

Whether an assessee, including a representative assessee, would be entitled to the benefit for deduction under section 80-L or not will have to be decided by reference to the provisions contained in that section. Section 80-L provides for deductions in respect of interest in respect of certain securities, dividends, etc. These deductions are made available to an individual, or a Hindu undivided family, or an association of persons or a body of individuals consisting only of husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu. A discretionary trust is obviously not a Hindu undivided family nor an association of persons contemplated by that section. Therefore, such a trust would become entitled to the deductions provided it can be regarded as an individual. The term "individual" as used in the Income-tax Act does not mean a single living human being but would include in its ambit a body of individuals constituting a unit for the purposes of the Act. Even though the assessment of income is in the hands of the trust, it has to be made in the same manner and to the same extent as it would have been made in the hands of the beneficiaries. The representative assessee in the case of a discretionary trust must be regarded as an individual and thus would be entitled to the benefit of deductions under section 80-L of the Act.

CIT v. G.B.J. Seth and C.O.J Seth (1987) 166 ITR 604 (MP) distinguished.

CIT v. Deepak Family Trust No. l (1995) 211 ITR 575 (Guj.); CIT v. Deghamwala Estates (1980) 121 ITR 684 (Mad.); CIT v. Indira Balkrishna (1960) 39 ITR 546 (SC); CIT v. Kamalini Khatau (Smt.) (1978) 112 ITR 652 (Guj.); CIT v. Kamalini Khatau (1994) 209 ITR 101 (SC); CI I v. Shri Krishna Bandar Trust (1993) 201 ITR 989 (Cal.); CIT v. Sodra Des 1 (1957) 32 ITR 615 (SC); CWT v. Trustees of H.E.H. Nizam's Famtk (Remainder Wealth) Trust (1977) 108 ITR 555 (SC); Lalchand Tikamda, Makhija v. J.K. Kuriyan, CIT (1991) 188 ITR 253 (Bom.) Murugesan (G & Brothers v. CIT (1973) 88 ITR 432 (SC); Santimoyee Bose (Smt.) v. CI l (1969) 74 ITR 133 (Cal.) and WTO v. C.K. Mammed Kayi (1981) 129 ITR 307 (SC) ref.

C.V. Rajan for the Commissioner.

S.A. Balasubramanian for the Assessee

JUDGMENT

THANIKKACHALAM, J. --- At the instance of the Revenue, the Tribunal referred the following common question for the assessment year 1974-75 and 1975-76 for opinion of this Court under section 256 (l) of the Income-tax Act, 1961:

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the assessee was entitled to deduction under section 80-L, even while agreeing with the view taken by the Department that the income computed in the assessee's case will be liable to tae under section 164(1) treating such income as the total income of an association of persons?"

Six reference applications were filed by the Commissioner of Income-tax, Madurai, seeking to raise two questions said to be questions of law arising out of the common order of the Tribunal in I.T.As. Nos.790. 791 and 795 to 798 (Mad.) of 1979, dated June, 30, 1980, in the case of three trusts, viz. Venu Suresh Sanjay Trust, Venu Suresh Ramay Trust, Madurai and Ramesh Mahesh Radha Trust, Madurai, for the assessment years 1974-75 and 1975-76. Even though two questions were sought to be raised, the Tribunal referred only one question which would be comprehensive enough to satisfy both the questions.

The assessee is a public trust of which Shri T.S. Krishna was the trustee. It is common ground that it is a discretionary trust in view of the fact that the shares of the beneficiaries are not ascertainable. Though the trusts are different trusts, this fact is common. The issue that arose for consideration was, whether the assessee would be eligible for relief under section 80-L of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). The Income-tax Officer was of the view that the assessee "status should be an association of persons, because there is snore than one beneficiary, whose share in the trust is not definite. Since the assessee admittedly is not an association of persons envisaged under section 80-L(1)(c) and is not an individual or a Hindu undivided family (HUF), the assessee is not eligible for the relief. The Income-tax Officer relied on section 164(1) which specifically stipulated that where the shares of the beneficiaries are not definite, the tax has to be charged "as if the relevant income or part of relevant income were the total income of an association of persons, or at the rate of sixty-five per cent., whichever course would be more beneficial to the Revenue".

On appeal, however, the Appellate Assistant Commissioner accepted the assessee's contention and granted relief under section 80-L of the Act. On further appeal, the Tribunal in a common order found that section 164 of the Act is not an independent section and does not determine that status of the assessee, but merely imposes a liability at the same rate of tax as an association of persons. The Tribunal was of the view that the reading of sections 160, 161 and 162 reveals that the assessee is a representative? assessee and that such representative-assessee has to be an individual or an artificial juridical person, who is also equated with an individual. The trustee acts for each individual beneficiary and is responsible for the tax liability of such an individual. The assessment is, therefore, to be made on the trustee as an individual in his representative capacity. The fact that in these cases, the beneficiaries are groups of individuals does not mean that the liability of the assessee is as an association of persons. Finally the Tribunal held that the assessee is entitled to the benefit under section 80-L of the Act while determining the total income. Accordingly, the orders passed by the Appellate Assistant Commissioner were confirmed.

Learned standing counsel appearing for the Department submitted that the assessee was an association of persons and, therefore, it was not entitled to deduction under section 80-L, which according to learned counsel is admissible only in the case of individuals, Hindu undivided families and association of persons or body of individuals consisting only of husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu. Learned standing counsel further submitted that the assessee was neither an individual nor a Hindu undivided family, nor an association of persons or body of individuals of the type referred to above. According to learned counsel, the association of persons referred to in section 80-L was the one which consisted only of husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu and not to any other association of persons. It was further submitted that since the assessee was assessed in the status of an association of persons other than the association of persons referred to in section 80-L and was also not governed by the terms "individuals" or "Hindu undivided family" it was not entitled to deduction under section 80-L. When the provisions of section 164 made applicable, in the case of the assessee, the assessment should be made in the status of an association of persons and there is no scope for other consequences.

On the other hand, learned counsel for the assessee submitted that the association of persons referred to in section 80-L was not the one governed by the system of community of property in force in the Union territories of Dadra and Nagar. Haveli and Goa, Daman and Diu, but was only an association of persons. According to learned counsel, a plain reading of section 80-L(1)(c) will show that the association of persons or a body of individuals referred to therein is one consisting only of the husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu. It was further submitted that even though by virtue of the provisions contained in section 164(1)(i) the income of a trust where the individual shares of the beneficiaries are not determinate has to be taxed as if it were the total income of an "association of persons" this would not imply that the status of the trust has to be taken as an association of persons. According to learned counsel, the status of the trust is to be governed by the trustee dependent upon his status. In the present case, there is one trustee, i.e. T.S. Krishna, who is an individual. It was, therefore, urged that the status for the purpose of making the assessment has to be that of an individual and it is only by fiction of law created by virtue of the provisions contained in section 164(l)(i) that tax has to be calculated as if the total income was the total income of an association of persons. Viewed from this angle, the assessee claimed that since the trustee was an individual and assessment has to be made in the status of an individual, deduction under-section 80-L is admissible and should have been so held by the Income-tax Officer. Learned counsel for the assessee also contended that even though the status in the return of income filed was wrongly stated as an association of persons, it did not preclude the assessee from claiming a correct status before the Income-tax Authorities. According to learned counsel, the assessee has to be treated as an individual for all purposes, i.e. for computing the income as well the status and not merely for the purpose of calculating the tax. It was further submitted that it is well?-settled that the legal fictions are created only for some definite purpose and this must be limited to that purpose and should not be extended beyond that legitimate field.

The references relate to three assessee each for the assessment years 1974-75 and 1975-76. A new trust was created by a deed of settlement dated March 19, 1973. The trust was intended to provide funds to be applied for certain beneficiaries mentioned in the trust-deed. T.S, Krishna was appointed as a trustee. It is common ground that between both the parties the shares of beneficiaries are not determined and, therefore, tax has to be charges in view of the provisions contained in section 164(1)(i), i.e., as the relevant income of the trust was the total income of an association of persons. The income of the trust included income of dividends and interest. Deduction under section 80-L was claimed which has not been allowed by the Income ?tax Officer. According to the Income-tax Officer, in view of the decision of the Gujarat High Court in the case of CIT v. Sint. Kamalini Khatau (1978) 112 ITR 652 (FB), the assessee is not entitled to get deduction under section 80-L. According to the Income-tax Officer, the assessee was neither an individual nor a Hindu undivided family nor an association of persons or body of individuals of the type referred to in section 80-L of the Act. The association of persons referred to in section 80-L was the one which consisted only of husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu and not to any other association of persons.

According to the Department, the assessee was assessed in the status of an association of persons other than the association of persons referred to in section 80-L and was also not governed by the terms "individuals" or a Hindu undivided family, it was not entitled to deduction under section 80-L. But, according to the assessee, the status of the trust is to be governed by the trustee depending upon his status. Therefore, the status for the purpose of making the assessment has to be that of an individual and it is only by fiction of law created by virtue of the provisions contained in section 164(1)(i) the tax has to be calculated as if the total income was the total income of an association of persons. In the present case, it was the trustee who received and controlled the income and it was also contended that the trustee could not be treated as a representative-assessee. There was no dispute regarding the status of the assessee who was an individual. The assessee in the-present case is not governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu.

In the cases of G. Murugesan and Brothers v. CIT (1973) 88 ITR 432 (SC) and CIT v. Indira Balkrishna (1960) 39 ITR 546 (SC), the Supreme Court has held that for forming an association of persons, the members of the association must join together for the purpose of deriving any income. An association of persons can be formed only when two or more individuals voluntarily join together for a certain purpose and use of volition on the part of the members of the association is an essential ingredient and even a minor can join an association of persons if his lawful guardian gives his consent. In the present case it was pointed out that there was no volition on the part of the beneficiaries who form an association of persons or between the beneficiaries or the trustee. There is no volition on the part of the beneficiaries to come together for sharing the benefits from the trust or between the beneficiaries or the trustee. Therefore, according to the assessee, no association as such has come into being in this case. In the decision reported in the case of CIT v. Deghamwala Estates (1980) 121 ITR 684 (Mad.), reference was made with regard to the ingredients of an association of persons while making a distinction between an association of persons and body of individuals. Under the scheme of the Income-tax Act, assessments have to be made on certain categories of persons either directly or in it representative capacity. Where assessments have been made in the representative capacity the assessees are known as representative assessee. Representative-assessees have been defined in section 160 of the Act. Liabilities of the representative-assessees are given in section 161. Rights of the representative-assessees are given in section 162. Section 164 deals with the case of trust for the purpose of charging tax where the shares of the beneficiaries are unknown. A plain reading of sections 160 to 162 would go to show that a representative-assessee has either to tie an individual or an artificial juridical person, who is also equated with an individual. Under section 160(1)(iv) it is the trustee, who is the representative-assessee. The trustee, therefore, has to be an individual or group of individuals Section 161 provides that every representative-assessee, as regards the income in respect of which he is a representative-assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were the income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income. The rights of the representative-assessee discussed in section 162 are similarly enforceable by the individual though in a representative capacity. The status of a representative-assessee has therefore, to be determined depending upon the personality of the individual. This is further strengthened from the language of-sections 161 and 162, that, that liabilities and rights are enforceable against and by the individuals though in a representative " capacity. Having determined the status under section 161, Subsection (1) of section 161 provides that the tax shall, subject to the other provisions contained in this Chapter, be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. Therefore, the tax shall be levied subject to the other provisions contained in this Chapter. Section 164(1) is subject to the provisions contained in section 161(1) Section 161 clearly omits from its provisions section 161 which further strengthens that section 164(1) does not supersede section 161 or section 162. A reading of section 164(1)(1) would go to show that it is by fiction of law that the income of the beneficiary is to be treated as income of an association of persons for the purpose of charging tax. This legal sanction is available only for the purpose of charging the tax on the total income that is determined in the case of a trust.

In CIT v. Kamalini Khatau (1994) 209 ITR 101, the Supreme Court while considering the provisions of sections 4, 5, 160, 161, 164 and 166 of the Act in answering the question whether the Revenue has an option to assess and recover tax from either the trustees or the beneficiaries of ;t discretionary trust when the income thereof is distributed and received by the beneficiaries in the accounting year under consideration held as follows (page 118):

"Section 164 states that where any income in respect of which a trustee is liable as representative-assessee is not specifically receivable on behalf or for the benefit of any one person or where the individual shares of the persons on whose behalf or for whose benefit such income or part thereof is receivable are indeterminate or unknown, tax shall be charged as if such income were the total income of an association of persons or where such income or part thereof is actually received by a beneficiary, then at the rate applicable to the total income 'of the beneficiary if such course benefits the Revenue. Put differently, section 164 states that tax shall be levied upon the income of a discretionary trust as if it were the total income of an association of persons, except that if it or part of it is actually received by a beneficiary it or that part of it become chargeable to tax at the rate applicable to the total income of the beneficiary if that course is beneficial to the Revenue. Section 164 does not create a charge on the income of a discretionary trust. The word 'charged' in the context in which it is used in section 164, means only "levied". Section 164 does not make the trustee of a discretionary trust liable to assessment or the recovery of tax on the income of the trust. Section 164, harks back to section 161 when it refers to persons ... liable as representative-assessees. It is section 161, therefore, which has to be read to make the trustee even of a discretionary trust liable to assessment and recovery of tax on income received by him as a trustee. Further, section 161, as pointed out above, protects the representative-assessee by stating that assessment upon him shall be deemed to be only in his representative capacity, by mandating that tax can be levied upon and recovered from him only in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him and by stating that he may not be assessed under any other provisions of the Act. Section 164 does not give any of these protections, as clearly, they must be given to all representative-assessees.

The liability of trustee of a discretionary trust to be assessed to tax in respect of its income and to recovery thereof is created by section 161 and it also states that he is not liable to such assessment under any other provisions of the Act. Section 164 sets out only how such tax shall be charged when the income is not distributed and when the income is distributed.

In the above said decision, the judgment of the Gujarat High Court in CIT v. Kamalini Khatau (1978) 112 ITR 652 (FB) was reversed.

In the, case of CIT v. Shri Krishna Bandar Trust (1993) 201 ITR 989 (Cal.), the Calcutta High Court while considering the provisions of sections 2(31) and 164 of the Act held that before the amendment in 1980, the provisions of the Income-tax Act, 1961, created by a fiction whereby, in the case, of a discretionary trust, the exigible tax was the tax payable by an association of persons or at the rate of 65 per cent whichever course would be more beneficial to the Revenue. The amendment effected by the Finance (No.2) Act, 1980, has done away with the deeming provisions whereby a trust, under section 164(1), could be assessed as though it were an association of persons. Where, however, a case falls under subsection (2) of section 164, the tax is chargeable as if the income to be charged were the income of an association of persons. But the fiction of an association of persons as contained in subsection (2) or, for that matter, subsection (3) of section 164 relates only to a charitable or public religious trust but not to a discretionary private trust dealt with by subsection (1) of section 164. Section 164(1) only lays down the rate of tax applicable to discretionary trust. It is not concerned with the manner of computation of total income. In fact, this section comes into play only after the income has been computed in accordance with the other provisions of the Income-tax Act, 1961. Since the determination of the status of an assessee is a part of the process of computation of income, it is necessary to look into the general principles for determining whether the status of the trustees of a discretionary trust can be taken to be as "an association of persons" or as "individual" It is now well?-settled that the word "individual" does not necessarily and invariably always refer to a single natural person. A group of individuals may as well come in for treatment as an individual under the tax laws if the context so requires. The word "association" means to join in any purpose" or "to join in action". Therefore, "association of persons" as used in section 2(31)(v) of the Income-tax Act, 1961, means an association in which two or more persons join in a common purpose or common action. The association must be one the object of which is to produce income, profits or gains. In the case of a discretionary trust, neither the trustees nor the beneficiaries can be considered as having come together with the common purpose of earning income. The beneficiaries have not set up the trust. The trustees derive their authority under the terms of the trust-deed. Neither the trustees nor the beneficiaries come together for a common purpose. They are merely in receipt of income. The mere fact that the beneficiaries or the trustees, being representative-assessees, are more than one, cannot lead to the conclusion that they constitute "an association of persons". The trustees of a discretionary trust have to be assessed in the status of an individual and consequently, deduction under section 80-L of the Income-tax Act, 1961, was allowable (see pages 994-D, G, H, 992-F, G, 993-E, F, 992-H, '993-A, B, 995-A) as can be seen from the headnote.

Similarly, in the case of CIT v. Deepak Family Trust No. 1 (1995) 211 ITR 575 (Guj.) while considering the provisions of section 80-L with reference to section 164 of the Act, the Gujarat High Court held the contention that if the case of a representative-assessee is covered by section 164, then clause (iv) of section 160(1) indicates that in such cases one has to proceed on the basis that the income receivable by the representative ?assessee is the income of the assessee and not the beneficiary persons cannot be accepted because the fiction created for one purpose cannot be utilised for a different purpose. Section 164 does not provide how total income of the representative-assessee is to be computed. Therefore, obviously, the provisions relating to computation of income would be applicable even in a case where the representative-assessee has to be assessed under section 164. Therefore, whether an assessee, including a representative-assessee, would be entitled to the benefit of deduction under section 80-L or not will have to be decided by reference to the provisions contained in that section. Section 80-L provides for deductions in respect of interest, in respect of certain securities, dividends, etc. These deductions are made available to an individual, or, a Hindu undivided family, or an association of persons or a body of individuals consisting only of husband and wife governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu. A discretionary trust is obviously not a Hindu undivided family nor an association of persons contemplated by that section. Therefore, such a trust would become entitled to the deductions provided it can be regarded as an individual. The term "individual" as used in the Income-tax Act does not mean a single living human being but would include in its ambit. a body of individuals constituting a unit for the purposes of the Act. Even though the assessment of income is in the hands of the trust, it had to be made in the same manner and to the same extent as it would have been mace in the hands of the beneficiaries. The representative-assessee in the case of a discretionary trust must be regarded as an individual and thus would be entitled to the benefit of deductions under section 80-L -- CIT v. Shri Krishna Bandar Trust (1993) 201 ITR, 989 (Cal.) fol.. WTO v. C.K. Mammed Kayi (1981) 21 CTR (SC) 345; (1981) 129 ITR 307 (SC); CIT v. Sodra Devi (1957) 32 ITR 615 (SC) and Lalchand Tikamdas Makhija v. J.K. Kuriyan CIT (1991) 188 ITR 253 (Bom.) relied on; CIT v. Smt. Kamalini Khatau (1978) CTR (Guj.) 327 (FB); (1978) 112 ITR 652 (Guj.) (FB) held no longer good law (as can be seen from the headnote).

Reliance was placed upon a decision of the Calcutta High Court in Smt. Santimoyee Bose v. CIT (1969) 74 ITR 133. According to the facts arising in that case a suit for maintenance filed by the assessee on behalf of herself and her minor sons and daughters against (her) husband, the Court directed payment of maintenance at certain rates and also arrears of maintenance. The assessee contended (that) under the decree the share of each plaintiff was specific and determinate and, therefore, the assessee should be assessed as an individual. On a reference, the Calcutta High Court held that "on reading the decree as a whole, the maintenance was not given to any of the plaintiffs on the basis of any proportionate share, but, the plaintiffs, were given jointly the right to receive certain sums of money, the share of the individual plaintiffs were, therefore, indeterminate or unknown and under the proviso to section 41 the assessee could be deemed to be an association of persons even though they did not associate or enter on a joint venture and the assessment of the assessee as an association of persons was right. "

But, according to the facts arising in the abovesaid decision, the question of assessing a discretionary trust does not arise. Further, there, was no claim for deduction under section 80-L. Therefore, this decision would not be applicable to the facts of these cases.

Reliance was also placed upon a decision of the Madhya Pradesh High Court in the case of CIT v. G.B.J. Seth and C.O.J. Seth (1987) 166 ITR 604. In the abovesaid decision while answering the question whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the assessee, who is an association of persons, is entitled to deduction as per clause (c) of subsection (1) of section 80-L of the Act, the Madhya Pradesh High Court held that the assessees were not entitled to deduction in respect of dividend income under section 80-L, where the assessees were the executors of the will of the deceased and were assessed in respect of the income of the estate of the deceased in the status of an association of persons. According to the facts arising in the abovesaid decision, the status of the assessee is an association of persons. It is in that status deduction was claimed under section 80-L of the Act. Therefore, the Madhya Pradesh High Court refused to grant such deduction. Hence, that decision is also distinguishable on facts. Our attention was also drawn to the decision of the Supreme Court in the case of CWT v. Trustees of H.E.H. Nizam's Family (Remainder Wealth) Trust (1977) 108 ITR 555, wherein the Supreme Court held that "even if the beneficiaries themselves were indeterminate or unknown, subsection (4) of section 21 would apply and the assessees would be liable to be assessed in respect of the totality of the beneficial interest in the remainder as if it belonged to one single beneficiary. When the beneficiaries are indeterminate or unknown, obviously their shares would also be indeterminate and unknown." In the abovesaid decision, the Supreme Court was not concerned with the deduction to be given under section 80-L of the Act.

Learned standing counsel submitted that the decision reported in CIT v. Shri Krishna Bandar Trust (1993) 20 ITR 989 (Cal.) was concerned with law as it stood after the amendment was introduced by the Finance (No.2) Act. 1980, which has done away with the deeming provisions whereby trust under section 164(1) of the Act could be assessed as though it were an association of persons. The fiction of the association of persons as contained in subsection (2) or, for that matter, subsection (3) of section 164 relates only to a charitable or public religious trust, but not to a discretionary private trust dealt with by subsection (1) of the section 164. According to learned standing counsel, the benefit of the Finance (No.2) Act, 1980, would be available only from 1980-81 onwards and for the earlier assessment years, this amendment would not be helpful. We are not saying that the fiction created under section 164(1)(i) of the Act will not be applicable to the facts of this case. According to us, the said fiction will be applicable only at the time of levying the tax after the income was determined in accordance with the other provisions of the Act.

The determination of total income depends on the various provisions of the Income-tax Act which takes into consideration the deductions to be provided under section 80-L of the Act as well. The charge of tax comes into play after the income has been determined in the manner stated above. In the present case, the trustee is an individual. His status therefore, has to be adopted as that of an individual and from his individual income the assessee is entitled to deduction under section 80-L of the Act. On the income so computed the tax has to be charged in view of the provisions contained in section 164(1) treating such income as if it was the income of an association of persons or at the rate of 65 per cent, whichever was more beneficial to the Revenue. Therefore, the assessee is entitled to deduction, under section 80-L of the Act. In view of the foregoing discussions, we consider that the Tribunal was correct in granting relief under section 80-L of the Act. Accordingly, we answer the question referred to us in the assessment years under consideration in the affirmative and against the Department. There will be no order as to costs.

M.B.A./1292/FC ??????????????????????????????????????????????????????????????????????????????? Reference answered.