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"Charitable purpose" has been defined in section 2(15) thus :

"Charitable purpose" includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit.' it is in the light of these provisions the claim of the assessee-trust for exemption in respect of its entire income should be considered.

15. The question whether the same assessee-trust was entitled to exemption under s. 4(3) of the 1922 Act came up for consideration before this court in CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 (Mad), Sri Agastyar Trust v. CIT [1963] 48 ITR 673 (Mad) and before the Supreme Court in East India Industries (Madras) Pvt. Ltd. v. CIT . In CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 (Mad), one M/s. East India Industries (P.) Ltd. had made a donation of Rs. 7,500 the Sri Agastyar Trust and claimed exemption from tax under s. 15B of the 1922 Act. Taking note of the fact that the trust had been created by the partners of a business firm, M/s. K. Rajagopal and Co., by setting apart 80% of the profits for charitable and religious purpose and that one Venkatarama Chetty was appointed as a trustee for administering the said fund and he had executed a trust deed on July, 1, 1944, and the various objects set out in the said trust deed, the court held that as one of the objects set out in the trust deed of July 1, 1944, was to manufacture, buy, sell and distribute pharmaceutical, medicinal, chemical and other preparations and articles such as medicines, drugs, medical and surgical articles, preparations and restoratives or foods and that was not a charitable purpose, the trust was not for wholly religious and charitable purposes and, therefore, the trust is not entitled to exemption under s. 4(3)(i), as under the provisions of the trust deed, the Agastyar Trust had unfettered discretion to spend whole of the income to a non-charitable object and, therefore, the property cannot be taken to be held in trust wholly for charitable purpose. Of course, Agastyar Trust was not a party before the court in the above case and it is only the donor who had made a donation to the trust who was a party therein and the decision was against it. Agastyar Trust itself claimed the benefit of exemption under s. 4(3)(i). Following the decision in CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 (Mad), another Division Bench of this court has held in Sri Agastyar Trust v. CIT [1963] 48 ITR 673 (Mad), that the Trust having been formed as a multipurpose trust with objects religious or charitable mixed with object non-religious and non-charitable, cannot come within the scope of s. 4(3)(i), if there is no compelling obligation on the trustee to devote any portion of the income of the trust for religious or charitable purpose and that, therefore, the main provision in s. 4(3)(i) cannot apply to the trust. The decision in CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 (Mad), was taken in appeal before the Supreme Court and the Supreme Court in East India Industries (Madras) P. Ltd. v. CIT [, held that one of the objects of the trust being the manufacture of pharmaceutical and medicinal preparations which is not strictly charitable and religious in nature and as the trustee had absolute discretion to spend the entire income for such a non-charitable object, the provisions of s. 4(3)(i) would not be applicable to the trust and no exemption could be granted to the trust under s. 15B of the Act. After setting out the various clauses in the trust deed dated July 1, 1944, the Supreme Court observed (p. 615) :

"The question to be considered is whether the property from which the income of the Agastyar trust is derived is held under trust or other legal obligation wholly for religious or charitable purposes within the meaning of section 4(3)(i) of the Act. In the present case, it appears from the deed of trust that one of the objects of the trust, namely, item 4, is not for charitable or religious purpose. Item No. 4 is 'to manufacture, buy, sell and distribute pharmaceutical, medical, chemical, and other preparation and articles such as medicines, drugs, medical and surgical articles, preparations and restoratives of food'. It may be that most of the other objects of the trust are religious and charitable in nature but if item No. 4 is not charitable, then the conditions envisaged by section 4(3)(i) of the Act are not fulfilled and the exemption conferred by section 15B of the Act cannot be applied. Clause 5(i) of the trust deed states that 'the trustee shall have power to apply the whole or any part of the trust property or fund whether capital or income in or towards payment of the expenses of the trust or for or towards all or any of the purposes of the trust provided any property or money held in special trust shall be applied only for that purpose and not otherwise'. In the present case, there is no special trust, that is to say, no particular item of property has been burned with the performance of any specific object of the trust. It is, therefore, manifest that under clause 5(i) of the trust deed it is open to the trustee to utilise the income for any one of the object of the trust to the exclusion of all other objects. In other words, it would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations. In our opinion, this particular object of the trust is neither charitable nor religious in character. If the trustees can, under a trust held validly, spend the entire income of the trust on this non-charitable object, it is difficult to hold that the trust property is held under a trust or other legal obligation wholly for religious or charitable purposes within the meaning of section 4(3)(i) of the Act."

17. One of the questions that has been canvassed before us is whether the Tribunal or this court can go behind the said judgment of the Supreme Court and hold that the Agastyar Trust is a charitable institution entitled to the benefit of exemption under s. 4(3)(i) of the 1922 Act. According to the Revenue, the Tribunal as well as this court is bound by the said decision of the Supreme Court and, therefore, the assessee in this case, namely, the Agastyar Trust, should be held not entitled to the exemption under s. 4(3)(i). The learned counsel for the assessee, however, contends that since the Supreme Court has proceeded on an erroneous basis that the trust was constituted for the first time under the document dated July 1, 1944, executed by the trustee, overlooking the fact that the trust had been earlier constituted in the year 1941 under a deed of partnership, it is open to the Tribunal and this court to go behind the said decision and give their decision by taking note of the objects mentioned in the partnership deed which created the trust for the first time. According to the learned counsel for the assessee, both this court in CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 and Sri Agastyar Trust v. CIT [1963] 48 ITR 673 and the Supreme Court in East India Industries (Madras) P. Ltd. v. CIT , were not aware of the creation of the trust earlier and have proceeded on an erroneous basis that the trust has been created only by the document dated July 1, 1944, and, therefore, it is possible for this court to decide the case on the correct basis that the trust has been constituted earlier by the terms of the partnership deed dated November 28, 1941, for the objects mentioned therein and the objects mentioned in the partnership deed will clearly establish that the trust has been created only for a charitable purpose and there is no non-charitable object involved. However, as a matter of fact, a perusal of the judgments of this court in CIT v. East India Industries (P.) Ltd. [1962] 46 ITR 1086 and Sri Agastyar Trust v. CIT [1963] 48 ITR 673 and of the judgments of the Supreme Court in East India Industries (Madras) P. Ltd. v. CIT , indicates that while rendering those decisions, the courts were aware of the fact that the trust has been constituted by a partnership deed, but they proceeded on the basis that the object of the trust has been set out only by the letter document dated July 1, 1944, executed by the trustee and it is only on that basis they have gone into the question as to whether the objects contained therein are charitable or whether they cover non-charitable objects also. According to the learned counsel for the assessee, the trust has in fact been constituted by the partnership deed for the objects set out therein and all those objects are exclusively charitable and, therefore, the character of the trust should be determined only with reference to the terms of the partnership deed and not with reference to the later deed executed by the trustee on July 1, 1944. The learned counsel further contends that the trust deed executed by the trustee expanding the objects of the trust so as to cover non-charitable objects should be taken to be illegal and that even the founder of the trust himself cannot alter the objects so as to make it a non-charitable trust and the attestation by the partners who had founded the trust of the latter document executed by the trustee is of no consequence and it cannot be taken to validate the trust deed. The learned counsel refers to the decision in Thanthi Trust v. ITO , in support of his contention that once a trust had been validly created for certain specified purposes, any deviation by the founder of the trust or the trusteesfrom the declared purpose would amount only to a breach of the trust and would not detract from the declaration of the trust, and that therefore, the subsequent conduct of the founder or the trustees in dealing with the funds of the trust long after its creation may not put an end to the trust itself.

18. Though we can prima facie agree with the submission of the learned counsel for the assessee that a charitable trust once validly created for certain charitable objects and properties have been dedicated for those objects, it is not open to the founder or the trustees appointed by him to enlarge the objects of the trust so as to make it a non-charitable trust, it is unnecessary for us to go into that question in detail as the Supreme Court has already rendered a decision regarding the constitution and the nature of the Agastyar trust in East India Industries (Madras) P. Ltd. v. CIT , and it is not open to us to go behind that decision on the ground that the said decision was render on an erroneous basis that the trust was created only by the trust deed dated July 1, 1944, while in facts the trust has been created under an earlier partnership document containing objects which are alleged to be purely charitable. The decision of the Supreme Court has been rendered on identical facts though in relation to an earlier assessment year. In view of article 141 of the Constitution of India, this court cannot go behind the said decision of the Supreme Court to see whether it proceeds on a correct basis or not. It is not the case of the assessee that new facts have been brought to light or subsequent events have taken place after the decision of the Supreme Court. Even if new facts are brought to light, it may not be possible for this court to go behind the decision of the Supreme Court because of article 141. Even otherwise, it is well established that a decision rendered by the Supreme Court on the same set of facts is entitled to great weight and this court cannot easily brush aside the judgment of the Supreme Court on the ground that the facts brought to light now were not placed before the Supreme Court. Though the principle of estoppel or res judicata cannot strictly apply to the decision rendered in proceedings under the I.T. Act on a reference, they have a binding effect both on the assessee as well as on the Revenue if the point on which the decision has been given is the same. But that principle will not apply if the facts are variable from year to year and the new facts warrant a different and contrary decision. In V. R. N. M. Subbayya Chettiar v. CIT , the Supreme Court observed that where a case was decided mainly with reference to the question of onus of proof, the decision must be confined to the year of assessment to which the case related and it is open to the assessee to show in subsequent years by proper evidence that a different or contrary decision is warranted on the facts of that case. In Sankaralinga Nadar (T. M. M.) and Bros. v. CIT [1930] AIR 1930 Mad 209; 4 ITC 226, a Full Bench of this court, dealing with the question as to how far the principle of res judicata applies to the decision of the court on a reference, had expressed the view that where the question relating to assessment does not vary with the income every year but dependeds on the nature of the property or on any other question on which the rights of the parties to be taxed are based, that is, whether a certain property is trust property or not, it has nothing to do with the fluctuations in the income and that such questions if decided by a court on a reference made to it would be res judicata in that the same question cannot be subsequently agitated. The Full Bench has relied on the decision in Hoystead v. Commissioner of Taxation [1926] AC 155, wherein their Lordships of the Privy Council observed (p. 165) :