JUDGMENT :- Chitra Venkataraman, J. 1. The assessee filed the above Tax Case Appeals as against the common order of the Income Tax Appellate Tribunal relating to the assessment year 1998-99, 1999-2000 and 2000-2001 raising the following questions of law :-"1. whether on the facts and circumstances of the case, the Tribunal was right in holding that the beneficiaries under the appellant trust were unknown or their shares indeterminate and therefore the trust income was taxable under Section 164(1) of the Income Tax Act, 1961 ? 2. Whether on the facts and circumstances of the case, the Tribunal was right in holding that the ratio of the judgment of Calcutta High Court in CIT Vs. Trustees of Keshav Mohta Family Trust, 232 ITR 875 was applicable to the facts of the case, especially in the light of the jurisdictional High Court's judgment in the case of CIT Vs. M.K.Kannan Marriage Benefit Trust and Others (240 ITR 785) ?" 2. A reading of the order of assessment reveals that the claim of the assessee that it be assessed as a Trust was rejected on the ground that the entire arrangement of Trust was sham one. Even though, it mentioned about the shares of the beneficiaries, who are twenty three in number, which included Big HUF, Small HUF and Individual, who were identifiable and their shares were determined, the fact revealed that the very enquiry of the beneficiaries showed that they were not aware of the shares and some of them were not aware of the existence of the Trust. In the circumstances, the Trust was assessed under Section 167B of the Income Tax Act, 1961. 3. Aggrieved by this, the assessee went on appeal before the Commissioner of Income Tax (Appeals) contending that there is specific Trust in the name of M/s.A.K.K.Trust; the return was filed in the circumstances of representative of assessee and all the beneficiaries are identifiable and their shares are determinable and therefore the trust is assessable u/s.161(4) read with Section 161(1) of the Income Tax Act, 1961; however, the assessment was made under AOP (Association of Persons). One of the grounds before the Commissioner of Income Tax (Appeals) was the Assessing Officer erred in treating the trust as sham and colourable device. The Commissioner of Income Tax (Appeals) dismissed the appeal and confirmed the findings of the Assessing Officer. 4. One of the grounds before the Commissioner of Income Tax (Appeals) was the Assessing Officer erred in treating the trust as sham and colourable device. The Commissioner of Income Tax (Appeals) dismissed the appeal and confirmed the findings of the Assessing Officer. 4. Aggrieved by this, the assessee went on further appeal before the Income Tax Appellate Tribunal, wherein, in Ground No.7, the assessee questioned the order of the Commissioner of Income Tax. 5. We find that the ground raised as regards the genuineness of the Trust was not considered at all by the Income Tax Appellate Tribunal. On the other hand, the Tribunal held that as per the terms of the trust deed, 'would be spouse' and 'would be children' would also become beneficiaries with effect from the year of their marriage and from the year of the birth of the child. Thus it could not be held that the shareS of some of the beneficiaries listed were determinable on the date of creation of the trust; the share of the beneficiaries were subject to change depending on their marriage and number of children born to them. Thus following the decision of this Court in the case of CIT Vs. Muthukrishnan reported in260 ITR 526 (Mad), the Tribunal rejected the assessee's appeal holding that the very fact that shares of some of the beneficiaries were determined on the date of the creation of the Trust would not be a good ground for granting relief to the assessee. Thus, the claim of the assessee was rejected. 6. Aggrieved by this, the assessee filed the present Tax Case Appeal. 7. On 17.06.2013, after hearing both sides, we passed the order accepting the case of the assessee that mere reference to 'would be spouse' or 'future child' by itself would not result in rejecting the claim of the assessee and assessing it as a Trust. In that order, we followed the decision of this Court in the case of Commissioner of Income Tax Vs. P.Sekar Trust reported in(2010) 321 ITR 305 as well as in the case ofCIT Vs. Chandrakanth (M.K.) reported in(1997) 225 ITR 101. However, before signing the order, we found that the question in fact to be decided by the Tribunal was as regards the genuineness of the Trust. P.Sekar Trust reported in(2010) 321 ITR 305 as well as in the case ofCIT Vs. Chandrakanth (M.K.) reported in(1997) 225 ITR 101. However, before signing the order, we found that the question in fact to be decided by the Tribunal was as regards the genuineness of the Trust. Thus, even though the questions were answered in favour of the assessee, we later on cancelled the said order by order dated 24.06.2013 and directed that the matter be listed for fresh hearing. 8. After going through the records and after hearing learned counsel on either side, we found that without giving a finding on the genuineness of the Trust, the relief claimed in the Tax Case Appeal could not be granted to the assessee following the decision of this Court in the case of Commissioner of Income Tax Vs. P.Sekar Trust reported in (2010) 321 ITR 305 as well as in the case of CIT Vs. Chandrakanth (M.K.) reported in (1997) 225 ITR 101. 9. In the circumstances, when the Income Tax Appellate Tribunal had not considered the specific issue raised in Grounds No.7, the proper course herein is to set aside the order of the Income Tax Appellate Tribunal and to remand the same to the files of ITAT for passing orders afresh after considering Ground No.7 with regard to the genuineness of the Trust. 10. In the result, the Tax Case Appeals are disposed of with the above direction. No costs.