B.L. Hansaria, J.
1. This is an application under Section 256(2) of the Income-tax Act, 1961, for short, 'the Act'. The Revenue has prayed that the Income-tax Appellate Tribunal may be directed to refer the following two questions of law for answer by this court:
'(i) Whether all the various objects and particularly those described in Sub-clauses (a), (b), (e), (g), (h), (i), (k), (n), (p) and (w) of the objects Clause 3 of the memorandum of association constitute charitable purposes' within the meaning of Section 2(15) of the Income-tax Act, 1961 ?
(ii) Whether, on the facts and in the circumstances of the case and having regard to the various objects contained in Clause 3 of the memorandum of association and on a proper construction of Sections 2(15), 11, 12 and 12A of the Income-tax Act, 1961, the assessee was entitled to exemption from income-tax ?'
2. The prayer of the Revenue under Section 256(1) of the Act was denied by the learned Tribunal on the ground that similar prayers had been rejected by it in R. A. Nos. 125 (Gauhati) to 130 (Gauhati) of 1976-77. Those applications under Section 256(1) had been made by the Revenue relating to the order of the Appellate Tribunal arising out of ITA Nos. 684 (Gauhati) to 689 (Gauhati) of 1973-74. The Revenue then approached this court under Section 256(2) of the Act feeling aggrieved with the rejection of the petitions in the earlier cases under Section 256(1) of the Act. The civil rules relating to the earlier applications under Section 256(2) of the Act were, however, dismissed by this court on default
3. It has been contended on behalf of the Revenue by Shri K. H. Chou-dhury that the questions mentioned above are pure questions of law and, as such, this court should call for a reference. In reply, it has been contended by Shri Bhattacharjee by referring to the earlier decisions of the learned Tribunal that the questions on which reference has been desired are essentially founded on questions of fact. To satisfy us in this regard, we have been taken through the order of the Tribunal passed in ITA Nos. 684 (Gauhati) to 689 (Gauhati) of 1973-74 which related to the same assessee. A perusal of that judgment shows that after going through the aims and objects of the assessee, it was held that the main object of the assessee is to provide means for improving the health and physique of the youth of Assam through the medium of sports and games of all kinds. The learned Tribunal, therefore, concluded that, in its considered opinion, the main object of the institution falls within the head 'Education'. In this context, our attention has been invited by Shri Bhattacharjee to Addl. CIT v. Surat Art Silk Cloth Manufacturers Association : [1980]121ITR1(SC) in which it has been held that if the primary or dominant purpose of a trust or institution is charitable, the subsidiary object would not militate against its charitable character and the purpose of the assessee would not be any the less charitable. It thus seems that, to decide whether the purpose of an assessee is charitable or not within the meaning of Section 2(15) of the Act, attention has to be paid to the dominant or primary purpose of the assessee. As, in this case, it has been held by the learned Tribunal in its earlier judgment which was followed in the present case that the main object of the assessee falls within the head 'Education', it has to be accepted that the purpose of the assessee is charitable.
4. Shri Choudhury, however, contends that the assessee is also carrying on an activity for profit by running a guest-house. As to this, it has been brought to our notice by Shri Bhattacharjee that the words 'not involving the carrying on of any activity for profit' which found place in Section 2(15) of the Act at the relevant time are relatable to the last head of charitable purpose of which mention has been made in the section. We may note Section 2(15) which at the relevant time read as below:
''Charitable purpose' includes relief of the poor, education, medical relief and the advancement of any other object of general public utility not involving the carrying on of any activity for profit.'
5. It has been held in Surat Art Silk's case : [1980]121ITR1(SC) that the words 'not involving the carrying on of any activity for profit' qualify or govern only the last head of charitable purpose and not the earlier three ones. It was, therefore, held that if the purpose of a trust or institution be relief of the poor, education or medical relief, the requirement of the definition of 'charitable purpose' would be fully satisfied, even if an activity for profit is carried on in the course of the actual carrying out of the primary purpose of the trust or institution.
6. This being the settled law by now and the finding of the learned Tribunal being that the main object of the institution falls within the head 'Education', and the primary purpose being the criterion for deciding whether the income has been earned for a charitable purpose, it has to be held that the questions of law involved in the present case are concluded by a judgment of the highest court of the land. In such a situation, any direction to make a reference would be academic and the High Court would be right in refusing the same as stated in Mathura Prasad v. CIT : [1966]60ITR428(SC) .
7. In view of all the above, we are not satisfied that a case has been made out to call for a reference under Section 256(2) of the Act. The petition is, therefore, rejected.