S.C. Mohapatra, J.
1. The Appellate Tribunal has stated a case being called upon by this court under Section 256(2) of the Income-tax Act, 1961, on the following questions :
'1. Whether, on the facts and in the circumstances of the case, the trust, being found to be a genuine one, provided sufficient material for the conclusion that the credit as entered in the assessee's books were genuine even though there was no material to support the position that at the time of loan the trust was possessed of adequate funds ?
2. Whether, there is any evidence at all for the presumption drawn by the Tribunal from the ultimate conclusion in the reported decision of this court to cover the claim of the assessee in regard to the loan ?'
2. The assessee is a private limited company. While examining the accounts of the assessee in the proceedings for assessment for the years 1969-70 to 1972-73, the Income-tax Officer found from the books of account of the assessee cash credits in all the three years in the name of Kalinga Foundation Trust. He came to the conclusion in effect that Kalinga Foundation Trust is not a juristic person and on that basis treated the various amounts as income of the assessee. On appeal by the assessee, the Appellate Assistant Commissioner relied upon a decision of the Tribunal in respect of the assessee, Biju Patnaik, that Kalinga Foundation Trust is a juristic person and a separate entity in the eye of law. The appellate authority also relied upon the decision of this court in S.J.C. Nos. 211 to 216 of 1971 arising out of the said order of the Appellate Tribunal, reported in ILR [1974] Cut 374 CIT v. Biju Patnaik). Accordingly, the appeals were allowed.
3. In second appeal by the Department, the Appellate Tribunal upheld the finding in the first appeal and one of the reasons for the same was that the Tribunal had come to a conclusion in respect of another assessee, Biju Patnaik, that Kalinga Foundation Trust is a juristic person and a separate entity, which has not been interfered with by this court in S.J.C. Nos. 211 to 216 of 1971. The application under Section 256(1) of the Act having been rejected on the ground that the decision is based on a pure question of fact, application under Section 256(2) of the Act was filed by the Department on which the statement of the case was called for on the two questions referred to in the beginning of this judgment since the decision in ILR (1974) Cut 374, was pending challenge in the Supreme Court. Recently, the Supreme Court has reversed the decisionof this court and has directed the Tribunal to state a case, [See CIT v. Biju Patnaik : [1986]160ITR674(SC) ].
4. The main basis of the decision of the Tribunal being now sub judice, the finding of the Tribunal that Kalinga Foundation Trust is a juristic person and a separate entity cannot be sustained as it will depend upon the answer to the questions to be referred to this court by the Tribunal as has been directed by the Supreme Court.
5. In the circumstances, the genuineness of the trust pending consideration, the Tribunal's finding cannot be sustained and question No. 2 has to be answered by stating that the Tribunal is not justified in drawing a presumption from the reported decision of this court which has been set aside by the Supreme Court and is required to consider the question afresh after the references in S.J.C. Nos. 211 to 216 of 1971 are answered. The consideration of the first question is academic at present since the genuineness of the trust is the subject-matter of the decision in S.J.C. Nos. 211 to 216 of 1971.
6. In the result, the cases are disposed of with a direction to the Tribunal to hear the second appeal again after disposal of S.J.C. Nos, 211 to 216 of 1971. No costs.
Agrawal, C.J.
7. I agree.