IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 337 OF 2005 AND INCOME TAX APPEAL NO. 405 OF 2005 AND INCOME TAX APPEAL NO. 406 OF 2005 AND INCOME TAX APPEAL NO. 407 OF 2005 AND INCOME TAX APPEAL NO. 408 OF 2005 AND INCOME TAX APPEAL NO. 416 OF 2005 AND INCOME TAX APPEAL NO. 417 OF 2005 AND INCOME TAX APPEAL NO. 434 OF 2005 AND INCOME TAX APPEAL NO. 435 OF 2005 AND INCOME TAX APPEAL NO. 447 OF 2005 AND INCOME TAX APPEAL NO. 555 OF 2005 S.S.P. Charitable Trust. ... Appellant. V/s. The Asst. Director of Income Tax. ... Respondent. S.N.Inamdar with Ms.Asifa Khan for the appellant. P.S.Sahadevan with for the respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 31st August 2009. P.C. : Income Tax Appeal Nos.435/2005; 447/2005 and 555/2005 are not on board. By consent of parties the said appeals are taken up for hearing. 2. Heard learned counsel for the appellant and learned counsel for the respondent. 3. Mr.Inamdar, learned counsel for the appellant submits that at the time of admission of the appeals, affidavit dated 1st July, 2008 sworn by the trustee of the assessee was taken on record. After taking the said affidavit on record appeals were admitted on the following three substantial questions of law formulated by this Court. 1. Whether on the facts and in the circumstances of the case and in law the ITAT was right in holding that 50 % of the net annual income of the four trusts, receivable by the appellant under the terms of these four trusts is not held in trust when the provisions of the appellant trust clearly provides that all the properties and incomes receivable by it are held in trust for the charitable object for which the appellant trust was created? 2. Whether on the facts and in the circumstances of the case and in laws there was any evidence for the Hon ble Tribunal to come to such a conclusion that all the four trusts are carrying on business when in fact the only source of income is rent receivable by these trusts from certain immovable properties owned and let out and they are not carrying on any business? 3. Whether on the facts and in the circumstances of the case, even if it is assumed that the four private trusts are carrying on the business for letting out the properties, the appellant trust cannot be denied the exemption claimed u/s. 11 of the Act as it is only entitled to receive 50 % share in the net annual income of the four trusts and the appellant trust itself is not carrying on any business? 4. Today, when these appeals were called out for hearing, Mr.Inamdar brought to our notice affidavit dated 1st July, 2008 and the facts stated therein. The affidavit is accompanied by annexure-A disclosing details of the amount received by the appellant and expenditure incurred. Both parties agree that it would not be proper to go in to the factual aspects of the said affidavit in the present appeal unless re-examination and appreciation of additional evidence is carried out by the Tribunal in accordance with law. Both parties have no objection if the impugned order is set aside without examining merits or demerits thereof and the matters are remanded to the Tribunal for fresh hearing on additional evidence. 5. In the above view of the matter, looking to the consensus between the parties, impugned order is set aside dispensing with the reasons in support thereof and the matters are remitted back to the Tribunal for consideration afresh. Appellant- assessee is permitted to produce copy of the affidavit dated 1st July, 2008 before the Tribunal. The Tribunal is directed to consider the material on record and the new factual aspects brought on record by way of aforesaid affidavit. All factual and legal aspects are kept open. Looking to the assessment year in question, which is 1994-95, we expect that the Tribunal shall dispose of the proceedings with expeditious despatch, at any rate, within a period of six months from the date of receipt of copy this order. 6. All the appeals are disposed of in terms of this order with no order as to costs. (J.P.DEVADHAR, J.) (V.C.DAGA J.)