JUDGMENT B.P. Jeevan Reddy, C.J.
1. By this application, the Revenue is asking this court to refer the following questions under Section 256(2) of the Income-tax Act :
"1. Whether the Appellate Tribunal was justified in holding that the income of the assessee association of persons was exempt from tax on the ground of mutuality despite the position that the provisions of Section 10(24) of the Income-tax Act, 1961, were not applicable to the facts of this case because the objects of the assessee-association did not provide at all for the regulation of relations between employers and workmen and further because out of seventeen listed objects, only one object provided for regulation of relations between employers and workmen ?
2. Whether the Appellate Tribunal was justified in holding that the test of mutuality was satisfied particularly in the light of the fact that the contributors and the ultimate beneficiaries in the event of dissolution of the association of persons cannot remain the same in view of the ever-changing constitution of the association of persons ?
3. Whether the Appellate Tribunal was justified in holding that the test of mutuality was satisfied ignoring the vital fact that two employees of the assessee-association, namely, Sri D. C. Awasthi and Sri B. K. Garg, were attending to the taxation matters and other matters of individuals and Hindu undivided families belonging to the J. K. family who were not enlisted as members of the assessee-association of persons. Besides, the accountant of the assessee-association of persons, Sri S. S. Jain, was writing the books of account of Kamla Town Trust which also was not a member of the association of persons ?
4. Whether the Tribunal was justified in ignoring that the income of the assessee-association of persons was assessable as business income under Section 28(iii) of the Income-tax Act, 1961, in view of the fact that the assessee-association of persons was carrying on an organised activity of arranging meetings and conferences for discussing matters of production, accounts, taxation, etc. ?
5. Whether the Tribunal was justified in holding that the assessee-association of persons satisfied the test of mutuality even after taking into account the decisions in the following cases :
2. The main question that arose before the Tribunal was whether the assessee's income was exempt on the ground of mutuality. The Tribunal found that there was complete identity between the contributors and participators and, therefore, the principle of mutuality was applicable.
3. In this case, it is contended by learned counsel that the present case falls under Clause (iii) of Section 28 of the Income-tax Act, 1961. Section 28 of the Act says that the income derived by a trade, professional or similar association from specific services performed for its members shall be taxed under the head "Profits and gains of business or profession". We, however, find that this aspect was never presented before any of the authorities under the Act. Without a factual basis, the said contention cannot be allowed to be raised.
4. The application, accordingly, fails and is dismissed. No costs.