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It was further noted that this distribution would be from the accumulated funds of the trust arising out of income of the earlier years.

4. Any Other 8usiness There being no other business the meeting was adjourned. Chairman .

23. However, that is not the case with the appellant, Mr. Dwarka Prasad Agarwal. He received the income of the trust during F.Y.s 2009- 10 and 2010-11 of Rs.59,55,59,638/- and Rs. 1,01,57,9321- respectively without any resolution or documented decision for distribution of the income of the trust in favour of the appellant. In other words, the trustees have not used their discretion before the income of the trust was diverted to the appellant in both the years. Even in the reply dated 02".05.2016 of the AR of the appellant during appellate proceedings, as reproduced in the aforesaid paragraphs, two meetings of trustees dated 03.01.2011 and 26.01.2011 are mentioned, which actually pertain to Mrs. Kiran Agarwal and not Mr. Dwarka Prasad Aqarwal. Even the receipt of Rs. 59,55,59,638/- in F.Y. 2009-10 precedes the two meetings of trustees dated 03.01.2011 and 26.01.2011 cited above .

24. It is further observed from the careful reading of the various clauses of the trust settlement deed dated 11.12.2007 that the I.T.A. No.4591/Mum/2016 and other two appeals trustees with the prior written consent or Direction of Shri Anil Agarwal, the Protector can only distribute the income or the funds of the trust, In the instant case, when there was no approval or discretion used by the trustees and the income has reached to the appellant, there is no question of prior written consent or direction of Shri Anill Agarwal, Te protectors. Te relevant clauses of the trust settlement deed are re-produced as under :(a) The Trustee, with the prior written consent of the Protector, shall during the Trust period pay or apply the income of the Trust Fund (or the balance thereof not accumulated or otherwise applied by the Trustee under any of the provisions hereof) and may, on the written direction of the Protector, from time to time pay or apply the whole or any of the capital of the Trust Fund to or for the advancement maintenance of benefit of the Beneficiaries.

(e) On the written direction 'ot the Protector, the Trustee may pay all or part of .., the income of the Trust Fund to the persons from time to time entitled to it.

25. From the discussion made in the preceding paragraphs, it is clear that the income of the trust was received by Mr. Dwaraka Prasad Agarwal, the appellant without any mandate from the trustees or Protector i.e., the receipts in the hands of the appellant during F.Y.s 2009-10 and 2010-11 corresponding to A.Y.s 2010-11 and 2011- 12 can not be said as distribution of income or fund of the trust as laid down in the provisions of sec. 160-165 of the LT. Act or as decided in the judicial pronouncements cited above. Clearly, such receipts can only be termed as application of income of the trust received on 31.03.2009 and not diversion of income by overriding tile, as it is not authorized by I.T.A. No.4591/Mum/2016 and other two appeals the trustees. In my considered opinion, since the trustee applied their discretion in the distribution of the income of the trust, the share of income and the year of distribution is not determinative or said to be crystallize in the hands of Mr. Dwarka Prasad Agarwal as a beneficiary, the ratio of the judgment in the case of Kamalini Khatau (SC) (supra) to the extent of "distributed and received by the beneficiaries" will not be applicable. Moreover, the appellant cannot claim that the receipts in his hands during F.Y.s 2Q09-10 and 2010-11 are capital receipts since it is just application of income of the trust received on 31.03.2009 and accrued and arisen to the appellant during the year under consideration.

9. We have carefully considered the rival submissions and perused the material placed before us including the impugned orders and case law relied upon by both the parties. The undisputed facts of the case are that the assessee is a beneficiary of trust called AADT and is formed under the laws of Union of India and Commonwealth of Bahamas. The trust was created by a validly executed trust settlement deed which was made on 11.12.2007 between Shri Dwarka Prasad Agarwal, Onclave PTC Ltd and Anil Kumar Agrawal. That Shri Dwarka Prasad Agarwal is a the settler, Onclave PTC Ltd is trustee and Anil Agarwal is the Protector. Thus the settler made an irrevocable settlement called Anil Agarwal Discretionary Trust (AADT). It was also expressly provided in the preamble that the settler was desirous of making an irrevocable settlement. The beneficiaries of AADT are Mrs. Kiran Agarwal, Mr. Dwarka Prasad Agarwal and Mr.Agnivesh Agarwal. The objects/obligations and duties of the trustees are set out in the trust deed I.T.A. No.4591/Mum/2016 and other two appeals executed on 11.12.2007. As per the trust deed the trustees were under obligation to accumulate the surplus income and deal with the same as if it were capital of the trust. The trust deed further stipulates that the trust fund shall be for the advancement and maintenance of the beneficiaries at the discretion of the Protector. The ld. AR invited our attention to the relevant articles in the Trust Deed filed at pages 1-11 of the paper book. In the financial year 2008-09, AADT received USD 20,000,000 from Volcan Investments Ltd, a company formed under the laws of the Commonwealth of Bahamas by way of dividend on shares held by the AADT in Volcan Investments Ltd. The source from which the dividend of UDS 20,000,000 was declared by Volcan Investments Ltd was received by the said company by way of dividend from Vedanta Resources Plc, a company incorporated in UK. The Volcan Investments held about 58.8% of the share capital of Vedanta Resources Plc at the relevant point of time. The dividend received by AADT was deposited in its account with Deutshe Bank copy of which is as filed at pages 12 of the paper book. The trustee in their meeting held on 31.3.2009 noted that the amount received from Volcan Investments Ltd has not been passed on to the beneficiaries and it was decided that the surplus be transferred to the corpus fund and be accumulated until distributed to the beneficiaries. The assessee received the following amounts during the financial year 2008-09 as distribution of corpus US 12,660,000. For the sake I.T.A. No.4591/Mum/2016 and other two appeals convenience, the details of the money received date wise with necessary details are given hereunder:-