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8. Dr. Debi Prasad Pal, learned senior counsel for the petitioner, contended that the Division Bench of this court in Tax Cases Nos. 1240 to 1245 of 1979 which is the petitioner's own case, CIT, v. Thanthi Trust [1982] 137 ITR 735 relating to the assessment years 1968-69 and 1969-70 has held that the petitioner is entitled to exemption under section 11 of the Act, inasmuch as the business is carried on by the trust in the actual carrying out of the objects of the trust. Learned senior counsel has further contended that in view of the categorical findings of the Division Bench of this court, in the petitioner's own case CIT v. Thanthi Trust [1982] 137 ITR 735 (Mad), while interpreting the trust deeds in question, that the charitable objects enumerated in the trust deeds and referred to in the schedule to decree in C.S. No. 90 of 1961, fall within the first two categories of charitable objects and in view of the finding of this court that the primary purpose is to carry out the charitable object and the business is carried on as a means in the actual carrying out of the primary purpose the respondent cannot ignore the said finding of the court and apply section 13(1)(bb) of the Act, when on the basis of the said finding of this court, which is in the express language of section 13(1)(bb), the petitioner-trust is entitled to the exemption under section 11 of the Act. Learned senior counsel also contended that in view of the said finding of the Division Bench of this court in the petitioner's owns case, in respect of the assessment years 1968-69 and 1969-70 interpreting the very same trust deed and the objects referred to in the schedule to the decree in C.S. No. 90 of 1961, the respondent is not at all correct in denying the exemption to the petitioner under section 11 of the Act.

"In the case on hand the property held under trust is the business itself and the business is carried on only, and exclusively, for carrying out the charitable objects set out in the schedule to the decree in C.S. No. 90 of 1961. As pointed out by the Supreme Court, if the contention of the Revenue that once a trust carries on a business activity it loses the benefit of section 11 is accepted, no trust can carry on any business even for the fulfilment of the charitable objects, such as, relief of the poor, education and medical relief and, therefore, such a contention cannot be accepted. If the intention of the legislature were to prohibit a trust or institution established for a charitable purpose or for the promotion of an object of general public utility from carrying on any activity for profit, it would have provided in the clearest terms that no such trust or institution should carry on any activity for profit. On the other hand, the Legislature by enacting section 11(4) under which the business may also be the property held under trust appears to contemplate a trust actually carrying on a business for charitable purposes or for general public utility.

In this case, the founder of the trust has clearly evinced an intention to create a public charitable trust as seen from the preamble and clause 3(k) of the original trust deed and the charitable objects referred to in the schedule to the decree in C.S. No. 90 of 1961 have to be fulfilled from and out of the income from the business which is directed to be held under trust or other legal obligation. Those charitable objects fall within the first two categories referred to in section 2(15), viz., relief of the poor and education. It is to carry out and fulfill those objects the business is being carried on. This, the primary purpose is to carry out the charitable objects and the business is carried on as a means in the course of the actual carrying out of that primary purpose and not as an end in itself. While the predominant object of the trust is the carrying out of the charitable objects referred to in two of the three categories of charitable purposes referred to in section 2(15), the carrying on of the business which is actually the property held under trust or other legal obligation is incidental, and the profit resulting from the business can be taken to the a by-product. In view of the said decision of the Supreme Court in Addl. CIT v. Surat Art Silk Manufacturers' Association , it is not possible to accept the case of the Revenue that the trust in this case cannot claim the benefit of exemption under section 11 merely because it carries on a commercial activity for profit. We have, therefore, to agree with conclusion of the Tribunal that the trust in this case can claim the benefit of section 11, if 75 per cent. of its income has been applied for charitable purposes and answers question Nos. 1 to 3 in the affirmative and against the Revenue."

14. In view of the findings recorded as above, the Division Bench in CIT v. Thanthi Trust [1982] 137 ITR 735 (Mad), answered question Nos. 1 to 6 referred to it, for opinion, in the affirmative and against the Revenue. The Revenue, aggrieved by the judgment of the Divisions bench in CIT v. Thanthi Trust [1982] 137 ITR 735 (Mad), filed special leave petitions before the Supreme Court, in Civil Nos. 10007-12 of 1981. The apex court, by its order dated February 24, 1984 (see [1984] 146 ITR (St.) 187), granted special leave only in respect of question Nos. 4, 5 and 6, referred for the opinion of this court and dismissed the special leave petition with regard to question Nos. 1 to 3. Therefore, the first three questions answered by the Division Bench in favour of the petitioner in CIT v. Thanthi Trust [1982] 137 ITR 735 (Mad) had become final and the findings rendered by the Division Bench with regard to question Nos. 1 to 3 are binding on both the petitioner-trust as well as the Revenue. Thus, in the petitioners own case, relating to the assessment orders 1968-69 and 1969-70, the Division Bench in the decision referred to above after considering the trust deed, supplementary deed and the effect of the judgment in C.S. No. 90 of 1961, on the file of this court, has rendered a categorical finding that the counter of the trust, has created a public charitable trust, that the decision in C.S. No. 90 of 1961 creates a legal obligation on the trustees to spend the income from the trust, after defraying the expenses of the newspaper business for the charities set out in the schedule to the decree and, therefore, the trust property, which is the business itself, should be taken to be held under a legal obligation for the various charitable objects, that the charitable objects referred to in the schedule to the decree C.S. No. 90 of 1961 have to be fulfilled from and out of the income from the business which is directed to be held under trust or others legal obligation, that those charitable objects fall under relief of the poor and education, referred to in section 2(15) of the Act and that the primary purpose of the trust is to carry out the charitable objects and the business is carried on only as a means in the course of the actual carrying out of the primary purpose of the trust and not as an end in itself.