K.S. Paripoornan, J.

1. The petitioner is the same person in both the O.Ps. He is an assessee to income-tax. The respondent in both these O.Ps. is the Commissioner of Income-tax. The petitioner prays that the following two questions of law may be directed to be referred by the Appellate Tribunal for the decision of this court. The questions of law formulated by the petitioner-assessee in both the O.Ps. are as follows:

' (i) Whether, on the facts and in the circumstances of the case, and on a proper construction of the trust deed relating to the Vijayalakshmi Cashew Company Employees' Welfare Trust, it could be held that the contribution of Rs. 1 lakh for the assessment year 1976-77 and Rs. 2,85,101 for the assessment year 1977-78 are not allowable expenditure

(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that only 50% of the proportionate expenditure considered as eligible could be treated as relating to exports and deductible under Section 35B of the Income-tax Act instead of the full proportion of 85.15% for the assessment year 1976-77 and 75.91% for the assessment year 1977-78 '

2. It is conceded that on the day when the funds were transferred to the trustees, no trust had, in fact, been created. This finding has been arrived at by the Appellate Tribunal. It is not questioned. If that be so, the contribution of Rs. 1 lakh or transfer of Rs. 1 lakh to the trustees even before the trust has been created cannot be said to be a proper or allowable expenditure. On this short ground, the common question No.(i) in both the O.Ps. does not arise for consideration. The Appellate Tribunal has opined that the contribution is not business expenditure in the light of the construction of the trust deed and concluded that no trust had been created, even though the money has been transferred to the trustees. The finding is largely one of fact, and the question of law,' formulated as question No. (i), can be hardly said to arise on the facts of the case. It could be stated that the petitioner has not questioned the finding of fact, to the effect, namely, that no trust had, in fact, been created on the day when the money was transferred. In so far as the said finding stands, any expenditure or contribution cannot be said to be an allowable expenditure.

3. It is agreed that question No. (ii),. regarding deducibility of amount under Section 35B of the Income-tax Act, is covered by the decision of this court in I.T.Rs. Nos. 7 and 8 of 1982 (CIT v. Tharian and Sons : [1987]166ITR607(Ker) ) and I.T.Rs. Nos. 133 and 134 of 1983 (CIT v. K. Ravindranathan Nair : [1988]170ITR411(Ker) ). We are of the view ' that in the light of the two Division Bench decisions of this court as aforesaid, no referable question of law, formulated question No. (ii), arises for consideration in these cases.

4. In the result, we reject the plea of the petitioner to direct the Income-tax Appellate Tribunal to refer the two questions of law formulated in the two O.Ps.

5. The O.Ps. are without merit. They are dismissed. No costs.