T. V. RAJAGOPALA RAO, J.M.: These are assessee s appeals against consolidated order of AAC, Visakhapatnam, dt. 16th Sept., 1983 and they relate to asst. yrs. 1978-79 to 1981-82. assessee in these appeals is admittedly discretionary trust. administration of trust was governed by stipulations framed in Trust Deed dt. 14th July, 1920, copy of which is furnished to us. Government Promissory Notes worth Rs. 2,50,000 constitute corpus of trust. application of income derived from corpus of trust should be done according to cls. 4 to 7 of Trust Deed which are as follows: "(4) income of Fund shall be available for being expended towards education of young members, male and female, of families of Raja Venkata Kumara Krishna Ranga Rao Bahadur, present Rajah of Bobbili, who is eldest son of Author of Trust, and of Raja Ramakrishna Ranga Rao Bahadur, his second son, and towards education of lineal descendants of said families. (5) surplus of income, if any, after expenditure as aforesaid shall be utilised for education of near relations of said families at discretion of Trustees for time being which shall be final as regards relationship or otherwise. (6) It shall not be competent to any Trustee to utilise or expend any part of income of Fund in payment of any salary or remuneration to any European male, tutor, but same may be expended in remuneration of services of any lady tutor or Governess employed for education on any of female members of said families and their lineal descendants. (7) Any surplus of income of fund not required for education of any member of said families or their lineal descendants or of any of their near relations on manner aforesaid, may be applied by trustee at his discretion in contributing towards expenses, so far as may be practicable, or any of members of said families or their lineal descendants or relations as above detailed, and of other young men of any caste seeking education or training in any foreign country." From above provisions, it is clear that assessee is private discretionary trust under which neither beneficiaries nor their shares in income were determinate. assessee trust derived income in each of four accounting years relevant to assessment years with which we are concerned, from three sources income from interest on securities, interest on savings bank account and income from other sources. For asst. yr. 1978-79, thought he assessee had shown to have derived income of Rs. 3,840 as interest on securities, it did not return said amount on ground that amount is not yet received. ITO held that under s. 18 of IT. Act, it is enough if interest is due and it need not actually be received before being brought to tax. assessee claimed relief under s. 80L before ITO while each of four assessments was going on before him. assessee contended that it should be considered as discretionary trust and its status should not be taken as association of persons (AOP), on other hand, its status should be determined as individual and relief under s. 80L should be granted. This claim of assessee was rejected by ITO on two grounds. Firstly, he held that inasmuch as assessee itself returned its income as AOP, it cannot be heard while it had changed its version. Secondly, under s. 164(1), where its income is not specifically receivable on behalf of any one person or beneficiary, status of trust for purpose of assessment should be determined as AOP. ITO also held that relief under s. 80L is available only for individuals and HUFs and not for AOP. Therefore, ITO determined income of assessee at Rs. 10,400 for asst. yr. 1978-79, Rs. 10,000 for asst. yr. 1979-80, Rs. 13,610 for asst. yr. 1980-81 and Rs. 11,260 for asst. yr. 1981-82 as against lesser amounts disclosed. Appeals were filed against separate assessment orders for each of assessment years under consideration before AAC, Visakhapatnam, assailing legality and correctness of denial of s. 80L relief to assessee-trust. It was contended that for assessment purposes only status of assessee should be taken as AOP but for allowing exemption under s. 8 0 L status of assessee must be taken as individual. It was further contended that s. 80L exemption was available in case of all discretionary trusts. It was also contended that wealth-tax was levied against assessee as discretionary trust. If it was to be considered as AOP, no wealth-tax could be levied. It was also contended that simply because for purposes of calculation of tax rate of tax applicable to AOP was applied, it does not make status of trust AOP. decision of Honourable Supreme Court in CIT vs. Indira Balakrishna (1956) 30 ITR 546 (SC) was cited to show essentials to be fulfilled before group of persons can be considered as AOP. According t o said decision, and AOP denotes entity where two or more persons joined for common purpose and common action to earn income. In case of trust, beneficiaries do not associate with each other to earn income. As such, trust cannot be called AOP. Reliance was also placed on Bombay High Court s decision reported in case of Orient Club vs. CWT (1982) 29 CTR (BOM) 117; (1982) 136 ITR 697 (Bom) and Gujarat High Court s decision in Orient Club vs. WTO (1980) 123 ITR 395 (Guj) wherein it was held that club is not AOP and was not liable to wealth-tax. AAC held in his consolidated order that even thought beneficiaries do not associate with each othe rin income earning process, trustees were appointed under trust to do so and, therefore, tustees could be regarded as AOP within Supreme Court s ratio in Indira Balakrishna s case (supra). He relied upon old decision in CIT vs. Ibrahimji Hakimji (1940) 8 ITR 501 to come to above said conclusion. AAC distinguished Bombay and Gujarat decisions cited on behalf of assessee by saying that they were rendered indifferent contexts and they were not clear authorities for proposition that trusts cannot be regarded as AOPs. He greatly stressed on fact that assessee itself returned it status as AOP. He laid down that by no stretch of imagination could assessee be regarded as individual of HUF. He further held that even thought assessee-trust cannot be regarded as AOP, still it can be considered as body of individuals . In support of his conclusion, he cited Madras High Court s decision reported in case of N. P. Sarawathi Ammal & Ors. vs. CIT (1982) 138 ITR 19 (Mad) wherefrom he had quoted in his impugned order. In said case, Madras High Court held that when persons who do nothing but stand and wait may not be AOP; but they may yet be BOI if they stand together and wait for something to be shared between them. When such is correct position in law, AAC held, even without active association for earning income, BOI can exist. Therefore, even if trust cannot be regarded as AOP, it can always be regarded as BOI. Deduction under s. 80L is not available to BOI. Hence, he confirmed denial of s. 80L relief for all four assessment year and dismissed all four appeals by consolidated order. assessee, having been aggrieved by impugned order filed these four second appeals contending that status of assessee as AOP was taken only for purposes of calculating tax but not for purposes of computing income, that relief under s. 80L was to be granted with reference to status of beneficiaries and not trust and that assessee, thought discretionary trust, is entitled to s. 80L relief. At time of hearing, additional ground was field to effect that assessee-trust fell under cl. (iii) of proviso to sub-s. (1) of s. 164 and, therefore, income was liable to be charged to tax as if it were total income of AOP and not at 65per cent of he income or at maximum marginal rate. This ground should be considered separately irrespective of determination of status as individual or as AOP. We heard Shri Ch. Srirama Rao and Shri M. J. Swamy, ld. advocates for assessee, and Shri N. Santhanam, ld. Representative for Department. Shri Srirama Rao argued that conceding everything in favour of Department, t h e tax levied by ITO for asst. yrs. 1980-81 and 1981-82 exceeded maximum marginal rate and to extent of excess relief to assessee should be granted irrespective of merits of case. It is argued that during these two years, maximum marginal rate was 60 per cent but not 65 per cent. As far as this argument is concerned, ld. Departmental Representative has no thing much to oppose. Therefore, we hold that excess tax of 5 per cent should be reduced for asst. yrs. 1980-81 and 1981-82. It is next contended by Sri Srirama Rao that s. 164 had undergone changes from time to time and for asst. yrs. 1978-79 and 1979-80. Sec. 164(1) reads as follows: "Subject to provisions of sub-s. (2) and (3), where any income in respect of which persons mentioned in clauses (iii) and (iv) of sub-s. (1) of s. 160 are liable as representative assessees or any part thereof is not specifically receivable on behalf or for benefit of any one person or where individual shares of persons on whose behalf or for whose benefit such income or such part thereof is receivable are indeterminate or unknown (such income, such part of income and such persons being hereafter in this section referred to as "relevant income", "part of relevant income" and "beneficial", respectively), tax shall be charged (i) as if relevant income or part of relevant income where total income of AOP, or (ii) at rate of sixty-five per cent, whichever course would be more beneficiaries to Revenue." whereas for asst. yrs. 1980-81 and 1981-82, s. 164(1) along with Explanation 2 to s. 164(3), which defined maximum marginal rate, reads as follows: "Subject to provisions of sub-s. (2) and (3), where any income in respect of which persons mentioned in cls. (iii) and (iv) of sub-s. (1) of s. 160 are liable as representative assessees or any part thereof is not specifically receivable on behalf or for benefit of any one person or where individual shares of persons on whose behalf or for whose benefit such income or such part thereof is receivable are indeterminate or unknown (such income, such part of income and such persons being hereafter in this section referred to as "relevant income", "part of relevant income" and "beneficiaries", respectively), tax shall be charged on relevant income or part or relevant income at maximum marginal rate." 'Explanation 2: In this section, "maximum marginal rate" means rate of income-tax (including surcharge on income-tax if any) applicable in relation to highest slab of income in case of AOP as specified in Finance Act of relevant year)." For 1980-81 and 1981-82, change was brought about in wording of section by Finance (No. 2) Act of 1980 w.e.f. 1st April, 1980 whereas section applicable to 1978-79 and 1979-80 is as substituted by Act 19 of 1970 w. e. f. 1st April, 1971. Under Expln. 2 to s. 164, which is applicable to asst. yrs. 1980-81 and 1981-82, "maximum marginal rate" is defined as rate of tax including surcharge on income applicable in case of AOP. This rate as per Finance Acts of 1981 and 1982 was on 60 per cent but mistakenly ITO took maximum marginal rate at. Hence, relief which we had granted in prior para. Next it is contended on behalf of assessee that incomes of assessee-trust for these four assessment years fall under cl. (iii) of proviso to sub-s. (1) of s. 164 and, therefore, said income was liable to be charged to tax as if it were total income of AOP and not at 65 per cent of income or at maximum marginal rate. Proviso (iii) to sub-s. (1) of s. 164 is as follows. "Provided that in case where (iii) relevant income or part of relevant income is receivable under trust created before 1st March, 1970, by non-testamentary instrument and ITO is satisfied, having regard to all circumstances existing at relevant time, that trust was created bona fide exclusively for benefit of relatives of settlor, or where settlor is HUF, exclusively for benefit of members of such family, in circumstances where such relatives or members were mainly dependent on settlor for their support and maintenance; tax shall be charged on relevant income or part of relevant income as if it were total income of association of persons." ld. Departmental Representative objected to admissibility of this additional ground as it was raised for first time only before us and it is not pure question of law but presents mixed question of law and fact inasmuch as finding that trust was bona fide created exclusively for benefit of relative of settlor and that those relatives were mainly dependent upon settlor for their support and maintenance was required to be established before benefit under said proviso can be claimed. However, such finding was neither called for nor given by either of lower authorities. It is also contended that in any view reading of cls. 7 and 8 of trust deed would make plea of assessee-trust ex facie untenable. We have already extracted cl. 7 and cl. 8 reads as follows; "Provided always and it is hereby declared that, if, at any future time, Rajkumar College wholly or mainly on lines laid down in G. C. No. 1956 dt. 19th August, 1919 of Government of madras, is shall be competent to then Trustee to transfer Fund in his hands to duly constituted authorities of that College for being applied to its purposes". After considering rival contentions on point, we are inclined to agree with submission put forward by learned Departmental Representative and uphold objection both on admissibility as well as on merits. Firstly, we hold that it is not pure question of law. argument of learned counsel, Sri Srirama Rao, that it involves mere application of correct provision to set of facts already on record cannot be accepted. His further submission that no new fact is required to be brought on record before appreciating claim is also not acceptable to us. From wording of proviso (iii) to sub-s. (1) of s. 164. which is already extracted above, it can be seen that in order to being case within four corners of proviso, finding that trust was created bona fide for benefit of relatives of settlor and those relatives were mainly dependent on settlor for their support and maintenance should be given by either of lower authorities. However, no such finding was either invited or given in this case. word. "maintenance" as per definition given in Hindu Adoptions and Maintenance Act includes provision for food, clothing, residence, education, medical attendance and treatment. trust deed does not say that beneficiaries were all dependent on settlor for food, clothing, residence, medical attendance and treatment. When interest of beneficiaries under trust deed was indeterminate and unknown, having special regard to cls. 7 and 8 of trust deed, it is highly difficult to hold that beneficiaries were all relatives of settlor and they were mainly dependant on settlor for their support and maintenance. Especially cl. 7 of trust deed gives discretion to trustees to span surplus of income form corpus gives discretion to trustees to span surplus of income form corpus of trust not required for education of any member of families or their lineal descendants can be contributed to educational expenses of any young man of any caste seeking education or training in any foreign country. As it is discretionary trust, we do not know either beneficiaries or their interest in income derived from corpus of trust to which they are entitled in any of four assessment years under consideration. When that is position, it is highly difficult to accept position that beneficiaries under trust deed comprised only relatives of settlor and they were mainly dependant on settlor for their support and maintenance. Assuming that beneficiaries are all class, who are only descendants of settlor, they being sons of then impartible estate holder of Bobbili and Sons of Junior members in family of impartible estate holder, it is but logical to presume that fathers of beneficiaries are responsible to provide maintenance to whole class of beneficiaries contemplated under trust deed in question. It is significant that trust deed speaks only of making provision for education of beneficiaries which is only one among many components of maintenance. Inasmuch as trust deed does not speak about other types of maintenance, and cls. 7 and 8 contemplate rank outsiders to family of settlor also becoming entitled as beneficiaries, it is difficult to hold that trust comes within sub-cl. (iii) of he proviso to sub-s. (1) of s. 164 of IT Act. Thus, additional ground cannot be admitted and in any view of matter, on merits also, said ground has no legs to stand. Now let us come to main plank on which Sri Srirama Rao based his arguments. According to him, s. 164 determines only how much tax is payable on relevant income when such income is to be taxed in hands of trustee in case where beneficiaries and their interest are indeterminate or unknown. According to him, it only provides measure of tax. He also argues that this provision comes into play only after total income of assessee is determined. His main contest is that this provision cannot be invoked to determine status of assessee with reference to which total income has to be determined, especially after Chapter VIA deals with deductions to be made is computing total income and s. 80L deduction is to be determined at stage when computing total income for assessee. He further argues that status of assessee and computation of total income of assessee are quite different and distinct from rate of tax he is liable to pay on said income. Sec. 164 (1), according to Sri Srirama Rao, deals with second aspect mentioned above, but not with first aspect. He further contended that trustees assessable under s. 161 as well as under s. 164 are only to be regarded as representative assessee within meaning of s. 160 (1) (iii). What has to be taxed is interest which beneficiary derives from income of trust. In case where beneficiaries are more than one and their shares are indeterminate of unknown trustees would be assessable in respect of their total beneficial interest in income derived from trust properties. In such case, it is obviously not possible to make direct assessment on beneficiaries in respect of their interest in income, because their shares are indeterminate or unknown and that is why it is provided under s. 164 (1) that assessment may be made on trustee as if beneficiaries for whose benefit trust properties are held were individual. In support of his contention, ld. counsel for assessee relied upon decision of Honourable Supreme Court in CWT vs. Trustees of H. E. H. Nizam s Family Trust 1977 CTR (SC) 306: (1977) 108 ITR 555 (SC). He explained that thought said decision was rendered with reference to s. 21 (4) of WT Act, it equally applies to case under s. 164 (1) of IT Act as wording of both provisions is in parimateria with each other and it is held to be so by Gujarat High Court in 1978 CTR (Guj) 327: (1978) 112 ITR 652 (Guj) in CIT vs. Smt. Kamalini Khatau, as follows: "In view of this pronouncement of Supreme Court it is clear that provisions of s. 21 of WT Act being almost in identical language and being analogous to provisions regarding representative assessee as enacted in s. 161 and s. 164 of IT Act, decisions under WT Act will also have their impact in interpreting s. 161 and s. 164 of Act of 1961." In CWT vs. Trustees H. E. H. Nizam s Family Trust 1977 CTR (SC) 306: (1977) 108 ITR 555 (SC), Supreme Court, speaking about status of status of trustee in case where it is discretionary trust, held as follows: "Obviously, in such case it is not possible to make direct assessment on beneficiaries in respect of their interest in trust properties, because their shares are indeterminate or unknown and that is why it is provided that assessment may be made on trustee as if beneficiaries for whose benefit trust properties are held were individual." question whether while assessing discretionary trust deduction under s. 80L is to be allowed or not, directly came up before Madras Bench B of Tribunal in Gopal Srinivasan Trust vs. ITO (1983) 3 ITD 322 (Mad). In that case, division bench of Tribunal held that status of trustee should be determined with reference to status of beneficiaries. It was also held that beneficiaries under three trusts before them cannot be considered as either AOP or body of individuals within meaning of Madras High Court s decision in CIT vs. Deghanwala Estates (1980) 14 CTR (Mad) 284: (1980) 121 I T R 684 (Mad). In order to constitute BOI, following requirements are essential, according to Madras Bench. It held at p. 329 of reported decision as follows: "A common purpose, common tie, actual or potential capacity to hold properties or disposable income, it was observed, would be minimum requirement of body of individuals. In present case, these attributes cannot be said to be fulfilled with reference to beneficiaries under three trusts. Except that they are beneficiaries under common fund of trust, they have no other capacity or potentiality to hold or dissolve fund. We must, therefore, hold that status in assessment cannot be that of body of individuals. " Next, they considered whether beneficiaries under trust deed can be considered to be within definition of word "individual" Bench held that word "individual" Bench held that word "individual" was not defined under IT Act but ambit of word "individual" takes in group of persons forming unit. For instance, corporation created by statute, viz., university, bar council or trustee of baronetcy trust, can as well be considered as individual. They relied upon decisions of Supreme Court in CIT vs. Sodra Devi (1957) 31 ITR 615 (SC) and Sri Sridhar jiew vs. ITO (1967) 63 ITR 192 (SC). Having regard to wide amplitude of word "individual" , as explained by Supreme Court in above said cases, Madras Bench came ultimately to conclusion that correct status of three assessee in cases before them in respect of whom undisputedly tax had been levied at rate of 65per cent by virtue of cl. (ii) of s. 164 (1), is "individual". To same effect is decision of Pune Bench of this Tribunal in case of Shri Rajesh B. Rathi Trust vs. ITO (1984) 8 ITD 273 (Pune). they also followed decision in CWT vs. Trustees of H. E. H. Nizam s Family Trust (1977) 108 ITR 555 (SC) for determining status of trustee under discretionary trust. While rejecting contention that status of trust cannot be determined as AOP, it is held as follows at p. 286 of reported decisions: "All that has happened is that certain shares of company have been settled on trust, testamentary, non-testamentary or oral and income receivable by trustees on behalf of beneficiaries accrues by way of dividends on these shares: there is, therefore, no voluntary association or joining together of persons with any common object or common purpose of earning or producing income. As such, status of AOP ascribed to these assessees by authorities below is erroneous." They have also rejected argument that status of trust can be determined as BOI and in that connection they followed Madras High Court s decision in Deghanwala Estates case (1980) 14 CTR (Mad) 284 as well as Andhra Pradesh High Court s decision in Deccan Wine and General Stores vs. C I T (1977) 106 ITR 111 (AP), Gujarat High Court s decision in CIT vs. Harivadan Tribhavandas (1977) 106 ITR 494 (Guj) and Punjab and Haryana High Court in decision in Meera & Co. vs. CIT (1979) 8 CTR (P & H) 28: (1979) 120 ITR 574 (P & H) and also latest decision of Madras High Court in H. P. Saraswati Ammal vs. CIT (1982) 138 ITR 19 (Mad) Ulimately, they held following decision of Supreme Court in Sodra Devi s case (1957) 32 ITR 615 (SC) and WTO vs. C. K. Mammed Kayi (1981) 129 ITR 307 (SC) that status of trust can be determined as individual in which case deduction under s. 80L was available while determining its total income. As against this contention of learned counsel for assessee, learned Departmental Representative Sri Santhanam raised contention that while assessing trustee under discretionary trust, status of trustee should always be taken to be association of persons and he relied upon decision of Gujarat High Court reported as 1978 CTR (Guj) 327: (1978) 112 ITR 652 (FB): in CIT vs. Smt. Kamalini Khatau where C.J., B.J. Divan, expressing majority view, held as follows at pp. 671 and 672: "When one comes to s. 164, only departure that is made from scheme of s. 21 (4) of WT Act is that instead of creating fiction that body of beneficiaries is single individual, under s. 164 fiction is created that income received by representative assessee in case covered by s. 164 is, as if income were total income of association of persons". It is to be borne in mind that unlike fiction in s. 21(4) of WT Act, fiction under s. 164 is that income is deemed to be income of association of persons and tax has to be charged as if income of trust were income of association of persons when it is not specifically receivable on behalf of or for benefit of any one person on whose behalf or for or where individual shares of persons whose benefit such income or such part thereof is receivable are indeterminate or unknown. Therefore, it is clear that tax is to be charged on such income as if it were total income of association of persons and rates applicable to and association of persons and all provisions applicable in law to income of association of persons are applicable to this income which is covered by s. 164." Sri Santhanam, specifically brought to our notice that in case cited by him, Supreme Court s decision in case of Nizam s Family) (supra) was fully considered and difference between s. 21(4) of W.T. Act vis-a-vis s. 164(1) of IT Act were clearly brought home. Therefore, it is contention of Shri Santhanam that question as to status of trustee under discretionary trust when assessed under s. 164(1) should no longer be matter of controversy and it should be taken to have been concluded by Full Bench decision of Gujarat High Court and it should always be held to be AOP. We express our liability to accept this contention of ld. Departmental Representative for following reasons. question referred to Gujarat High Court is whether assessee, who is in receipt of certain income from six discretionary trusts is assessable individually with regard to income thus discretionary trusts is assessable individually with regard to income thus drived by him from six discretionary trust. That means question which cropped up before Full Bench was whether under s. 164(1) interest of beneficiary in income while she is in receipt of such income under discretionary trusts is assessable under provisions of s. 166 of IT Act. Ultimately, majority decision of Full Bench held that Revenue cannot proceed against beneficiary under s. 164 and in case falling under s. 164, provisions of s. 166 cannot be applied. ratio of majority decision can be found at page 674 of reported decision: " crucial question is not provisions of s. 166 but or s. 164 because of under s. 164 it is not open to tax authorities to proceed against beneficiary where beneficiary is not any one person or where individual shares of persons on whose behalf or for whose benefit such income or such part thereof is receivable are indeterminate and unknown, it is not open to tax authorities to treat income of trust except as income of fictional association of persons and last portion s. 164 is only for purpose of giving option as to rates as explained above, question of proceeding under s. 166 against beneficiary directly or recoverable from beneficiary tax payable by representative assessee in respect of amount paid in course of particular year of account but trustees under discretionary trust to one or other of beneficiaries under s. 164 can never arises. As very language of s. 166 says, it is enabling section and as Supreme Court has pointed out in C. R. Nagappa s case (1969) 73 ITR 626 (SC) s. 166 makes express what is implicit in s. 161(1) but, as we have pointed out above, since s. 164 is exception to s. 161(1), provisions of s. 166 can only apply to these cases filling under ss. 159 to 165 where they can possibly apply and since it is not possible, as pointed out by Supreme Court in Trustees of Nizam s Family Trust case (1977) 108 ITR 555 to proceed against beneficiaries under s. 166 cannot apply to cases falling under s. 164." Thus, it can be seen that there is no necessity or compulsion for learned Full Bench to decide about status of trustee under discretionary trust. Thus portion on which reliance is placed by learned Departmental Representative which is extracted above is mere obiter. Further, assuming without admitting that portion of Full Bench decision relied on for any reason is taken to be ratio of decision, we are compelled to observe that said ratio or opinion expressed about status of trustee under discretionary trust is quite opposed to status of said trustee under discretionary trust determined by Honourable Supreme Court i n Nizam s Family Trust case (supra) in which case we have to prefer Supreme Court decision and follow it rather than Gujarat decision which strikes different note. We may also mention that there is no necessity for Full Bench to adopt particular reasoning found in portion of judgment relied upon by learned Departmental Representative while disposing of real controversy in issue before it. We, therefore, held that Gujarat Full Bench decision on which learned Departmental Representative relied, is rendered on altogether different facts and circumstances and portion on which reliance was placed by learned Departmental Representative is only n obiter and said obiter runs counter to what was held by supreme Court in Nizam s Family Trust case (supra) regarding status of trustee under discretionary trust while he was being assessed under s. 164(1). Therefore, we refuse to follow Gujarat High Court s decision but prefer to follow Supreme Court decision as well as Division Bench decision of this Tribunal referred to above. Reference was made to decision of Kerala High Court in (1982) 26 C T R (Ker) 443: (1982) 138 ITR 808 (Ker) in CIT vs. V. S. Kumaraswamy Reddiar Trust. Having gone through decision, we are not able to find as to how it helps assessee in any of its contentions. There question was whether trust has to be assessed under s. 161(1) of IT Act. Thus, question that is referred to High Court as well as decision thereon is quite foreign to real point in controversy before us and we, therefore, hold that it has no relevance for our purpose. Reference was also made to decision rendered by Madhya Pradesh High Court in CIT vs. Karelal Kundanlal Trust (1983) 36 CTR (MP) 295: (1984) 148 ITR 412 (MP) for proportion that when there are more trustees than one under trust deed and when they are to be assessed as representative assessees under s. 161, whether they can be assessed as representative assessees under s. 161, whether they can be assessed as association of persons. Honourable High Court held that they cannot be so assessed. It was held that assessment should be made either in hands of representative assessees or directly in hands of beneficiaries but while assessing representative assessees, it could be only with regard to income to which beneficiaries are entitled and liability of representative assessee will also be restricted to that extent. In our opinion, decision does not fully cover issue before us. assessment under s. 164(1), and assessment under s. 164(1) are quite defferent and separate. Under s. 161(1), two options are open to Revenue. It can assess representative assessee on income derived by beneficiary and liability is limited to extent of interest of beneficiary whereas under s. 164(1), trustee under discretionary trust should, in words of Honourable Supreme Court, be treated as individual though trustee receives total beneficial interest of all beneficiaries under trust and he should be assessed with maximum marginal rate. ld. counsel for assessee also relied upon Supreme Court decision rendered in Banarsi Dass vs. WTO (1965) 56 ITR 224 (SC) and Trustees of Goverdhan Govind Ram Ramalu Chority Trust vs. CIT 1973 CTR (SC) 103: (1973) 68 ITR 47 (SC) for proposition that mere realisation of interest does not involve earning of income much less trustees under discretionary trust earning income for themselves. This matter was already dealt with by Pune Bench of Tribunal in its order in which it has approved this proposition. As we are following Pune Bench decision, it is quite redundant to any that we are accepting proposition canvassed before us. In result, we hold that status of trustees under trust deed dt. 14th July, 1920 should be held to be that of individual and, therefore, we hold that assessee is entitled to deduction under s. 80L. In view of our decision, all four appeals filed before us are allowed. *** EDICATIONAL TRUST FUND v. INCOME TAX OFFICER