JUDGMENT : 1. The petitioner has assailed an Order dated January 9, 2017 passed by the Principal Commissioner of Income Tax withdrawing the approval of the petitioner under Rule 91 of the Income Tax Rules, 1962. 2. Learned Senior Advocate for the petitioner has submitted that, the petitioner was established when the employer company was not of the size that it presently is. However, over the period of time, the size of the company has increased. The employee base consequently has increased. There is a consequent increase in the liability of the company to pay to the petitioner. Again the scales of salaries of the employees have also increased. The company, from time to time had paid in excess towards the fund. This excess payment was not detected till its detection as reflected in the balance-sheet of the company as at March 31, 2003. Once the same was detected, the petitioner and the company took steps for the purpose of refunding the excess payment. In terms of the trust deed as also the relevant provisions of the law, the trust cannot retain excess payment. Retention of excess payment by the trust would be acting in breach of the trust. Consequently, the excess payment was refunded. It is not a case where the company had taken a loan from the petitioner. The company having paid in excess than its obligations is entitled to refund of such excess payment. He has relied upon Rules 87 and 88 of the Income Tax Rules, 1962 read with Rule 9(b) of the Trust Refund Rule. He has submitted that, the petitioner could not receive excess fund than as prescribed under such Rules. The impugned order does not consider the aspect of excess payment. It does not take into consideration that, the petitioner being put in excess payment had refunded it to the legal entity from which it had received the same. The petitioner and the company had acted in accordance with law in doing so. 3. Learned Senior Advocate for the petitioner has submitted that, a number of disputes between the employer and the various sections of its employees were pending in different forai. Ultimately a suit was filed in Bangalore by a disgruntled section of the employees of the company. The issues raised therein had received the consideration of the Karnataka High Court. The parties were sent to mediation. Ultimately a suit was filed in Bangalore by a disgruntled section of the employees of the company. The issues raised therein had received the consideration of the Karnataka High Court. The parties were sent to mediation. The mediation was successful and an award was filed in the mediation. The same was accepted by the Karnataka High Court. Withdrawal of approval is not permissible in the facts of the present case. The withdrawal of approval under Rule 91 of the Income Tax Rules, 1962 will prejudicially affect the ex-employees. If the impugned order is allowed to stand in the manner and form that it stands today, the ex-employees would suffer. The petitioner would be obliged to refund the entire corpus to the employer. In such circumstances, it would be appropriate to set aside the impugned order. 4. Learned Senior Advocate for the respondent nos. 8 and 9 has submitted that, the refund made by the petitioner to the employer was justified. He has relied upon Rules 87 and 88 of the Income Tax Rules, 1962 in support of such contention. He has referred to the show-cause notice dated April 11, 2007 and the reply dated June 8, 2007 to the show-cause notice. He has submitted that, the employer had raised the issue of excess payment before the Commissioner and that, such issue has not been discussed in the impugned order. The company in its reply has stated that, the company had made excess payment by mistake and that, the petitioner had made a legitimate refund. Mistake of fact does not create any legal right. He has referred to Section 72 of the Contract Act, 1872 and has relied upon 2004 Volume 2 Calcutta High Court Notes page 606 (Indian Oil Corporation Ltd. & Ors. v. Jharna Sarkar & Ors.) and 1997 Volume 4 Supreme Court Cases page 177 (Chandigarh Administration & Ors. v. Naurang Singh & Ors.) in support of such contentions. Relying upon an Order dated December 15, 2016 passed in W.P. No. 12951 (W) of 2007 (Britannia Industries Limited Covenanted Staff Pension Fund & Anr. v. Union of India & Ors.) learned Senior Advocate for the respondent nos. 8 and 9 has submitted that, the Court had noted that, the disputes stood settled by mediation and that, the award was accepted by the Karnataka High Court. He has prayed for setting aside of the impugned order. v. Union of India & Ors.) learned Senior Advocate for the respondent nos. 8 and 9 has submitted that, the Court had noted that, the disputes stood settled by mediation and that, the award was accepted by the Karnataka High Court. He has prayed for setting aside of the impugned order. Learned Senior Advocate appearing for the respondent no. 3 has submitted that, the petitioner can receive such payment from the employer as it is legitimately entitled to. In the present case, the petitioner had received excess payment. He has referred to Section 2(6) of the Income Tax Act, 1961 for the purpose of the definition of an approved superannuation fund. He has referred to Part B of the Fourth Schedule of the Income Tax Act, 1961 and Rules 2, 3, 5 and 11 thereunder. He has submitted that, Rule 91(2) of the Income Tax Rules, 1962 is a subordinate legislation and is subservient to Rules 2, 3, 5 and 11 of the Rules appearing at Part B of the Fourth Schedule. He has submitted that, Part B of the Fourth Schedule contemplates that, there can be a refund of excess payment. Therefore, the concept of refund of excess amount is not alien to the Income Tax Act, 1961. He has submitted that, Rule 91(2) of the Income Tax Rules, 1962 is equivalent to Rule 29 of the Britannia Biscuits Company Covenanted Staff Pension Fund Rules. He has also prayed for setting aside of the impugned order. 5. Learned Senior Advocate appearing for the respondent nos. 10, 11 and 12 has submitted that, the respondent nos. 10, 11 and 12 are Non-Executive Directors of the Company. They were not involved in the affairs of the trust. Therefore, no liability should be fastened on such respondents. 6. Learned Additional Advocate General appearing for the respondent no. 5 has submitted that, the settlement arrived at in the mediation was approved by the Karnataka High Court. He has submitted that, the impugned order should be set aside. Rule 91(2) of the Income Tax Rules, 1962 is under Part III and is a subordinate legislation. Such Rule is subservient to the Act of 1961. It cannot override Part B of the Fourth Schedule of the Income Tax Act, 1961. He has submitted that, the impugned order should be set aside. Rule 91(2) of the Income Tax Rules, 1962 is under Part III and is a subordinate legislation. Such Rule is subservient to the Act of 1961. It cannot override Part B of the Fourth Schedule of the Income Tax Act, 1961. He has submitted that, the Commissioner has applied Rule 91(2) mechanically without considering Rule 5 of Part B of the Fourth Schedule of the Income Tax Rules, 1962. 7. Learned Additional Solicitor General appearing for the revenue has submitted that, there cannot be any correlation between the withdrawal of money by an employer from an approved superannuation fund and the power to withdraw approval granted to such fund under the Income Tax Rules, 1962. He has submitted that, the power to withdraw approval under Rule 91 of the Income Tax Rules, 1962 is far wider and is not limited to any solitary event as in the present case. He has submitted that, the issue as to whether excess payment was made by the employer or not, is to be looked at and decided. The terms of settlement are also relevant for deciding such issue, according to him. The Income Tax authority should look into whether excess payment was made or not, through the perspective of the terms of settlement also. 8. In reply, learned Senior Advocate for the petitioners has submitted that, the Court should confine itself to the issues raised. According to him, the issue of excess payment was never raised to be decided. It is an admitted fact that, a sum of Rs.12,11,99,000/- was paid in excess by the company to the petitioner. The petitioner being obliged in law to refund the same, had repaid such sum by three cheques for the financial year ended March 31, 2004. Such quantum being an admitted excess payment, the petitioner was obliged to refund the same. Therefore, such an issue not being raised, the question of decision thereon does not arise. 9. Whether the impugned Order dated January 9, 2017 withdrawing approval granted under Rule 91 of the Income Tax Rules, 1962 in favour of the petitioner, justified in the facts and circumstances of the instant case is the issue falling for consideration. 10. The first petitioner is a trust. It was constituted by the respondent no. 3 by a deed of trust dated March 4, 1971. 10. The first petitioner is a trust. It was constituted by the respondent no. 3 by a deed of trust dated March 4, 1971. By an order dated December 22, 1971 the Commissioner of Income Tax had approved and registered the first petitioner under Part 3 of Schedule IV of the Income Tax Act, 1961. The name of the first petitioner was changed from time to time. Such change of name was approved by the authorities. The petitioners claim that, the sole purpose of the first petitioner is to provide annuities to the ex-employees of the respondent no. 3. 11. The petitioners claim that, the petitioners had discovered during the financial year 2002-2003 that, the respondent no. 3 had made an excess contribution of Rs.1,211.99 Lakhs and as such the petitioner had refunded such sum to the respondent no. 3. A section of the disgruntled ex-employees of the respondent no. 3 had lodged a complaint with the respondent no. 2. By a letter dated April 11, 2007 the respondent no. 2 had alleged violation of Rule 91(2) of the Income Tax Rules, 1962. It had proposed to withdraw the approval. The petitioners had challenged the legality and validity of the notice dated April 11, 2007 by a writ petition being W.P. No. 12951 (W) of 2007. An interim Order dated October 15, 2007 was passed in such writ petition. The respondent no. 3 was directed to deposit the entire amount in a fixed deposit to be separately held by the petitioner. An appeal was carried from such order. Such appeal was disposed of by an Order dated November 30, 2007 by permitting the authorities to continue with the show-cause notice after affording a reasonable opportunity of hearing to the affected parties. A Special Leave Petition was preferred against the Order dated November 30, 2007. Such Special Leave Petition was disposed of by setting aside the Order dated November 30, 2007 and restoring the writ petition being W.P. No. 12951 (W) of 2007 to be disposed of by the learned Single Judge in accordance with law. In the interregnum, the respondent no. 3 had deposited the entire amount pursuant to the Order dated October 15, 2007. 12. The respondent no. 5 had filed a Civil Suit being O.S. No. 25868 of 2008 in relation to the refund of the sum of Rs.1,211.99 Lakhs. Such suit was decreed on September 21, 2015. In the interregnum, the respondent no. 3 had deposited the entire amount pursuant to the Order dated October 15, 2007. 12. The respondent no. 5 had filed a Civil Suit being O.S. No. 25868 of 2008 in relation to the refund of the sum of Rs.1,211.99 Lakhs. Such suit was decreed on September 21, 2015. An appeal was filed against such decree. In such appeal, the Hon’ble Karnataka High Court had passed an Order dated December 18, 2015 directing mediation. In the mediation, the parties had resolved their disputes and differences on the terms and conditions as recorded in the memorandum of settlement dated August 29, 2016. The memorandum of settlement had dealt with the sum of Rs.1,211.99 Lakhs. It appears that, the respondent no. 5 by a letter dated August 31, 2016 had communicated its consent to allow the respondent no. 3 to withdraw the fixed deposit of Rs.1,211.99 Lakhs along with accrued interest thereon to the respondent no. 2. The first petitioner and the respondent no. 3 had issued a joint letter dated September 30, 2016 requesting the Income Tax authority to accept and assist in the implementation of such settlement. The memorandum of settlement was finally accepted by the Hon’ble Karnataka High Court and a decree was passed on October 18, 2016. The first petitioner had informed the Income Tax authority about the same by a letter dated November 16, 2016. The petitioners had moved an interim application being CAN 11463 of 2016 in W.P. No. 12591 (W) of 2007. Such application and the writ petition being W.P. No. 12591 (W) of 2007 were heard and disposed of on December 15, 2016 by directing the respondent no. 2 to consider and decide the representation dated August 31, 2016 of the respondent no. 5 as also the representation dated September 30, 2016 made by the first petitioner and the respondent no. 3, after giving an opportunity of hearing to the parties or their authorized representatives. Such order as corrected was communicated to the respondent no. 2. The respondent no. 2 through the impugned order had withdrawn the approval granted to the first petitioner under Rule 91(2) of the Income Tax Rules, 1962. 13. 3, after giving an opportunity of hearing to the parties or their authorized representatives. Such order as corrected was communicated to the respondent no. 2. The respondent no. 2 through the impugned order had withdrawn the approval granted to the first petitioner under Rule 91(2) of the Income Tax Rules, 1962. 13. Excepting the revenue, all other parties have contended that, the impugned order proceeds on the basis of the Rule 91(2) of the Income Tax Rules, 1962 without taking into consideration Rules 87 and 88 of the Income Tax Rules, 1962 as also Rules 2, 3, 5 and 11 of the Rules appearing at Part B of the Fourth Schedule of the Act of 1961. 14. Part B of the Fourth Schedule of the Income Tax Act, 1961 deals with approved superannuation funds. Rule 2 deals with grant of approval and withdrawal of the approval. The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may accord approval to any superannuation fund or may at any time withdraw such approval. Rule 3 deals with the conditions of the grant of approval. Rule 4 contemplates the application for approval. Rule 5 deals with contributions by employer when deemed to be income of the employer. Rule 5 contemplates that, where any contribution by an employer including the interest thereon, if any, are repaid to the employer, the amount so repaid shall be deemed for the purpose of income tax to be the income of the employer of the previous year in which it is so repaid. Rule 5, therefore, contemplates a situation where the employer can be repaid by a fund. The question of repayment arises only if the employer has paid in excess than its liability. Rule 11 allows the opportunity to make rules. It goes on to say that, all rules made under Part B of the Fourth Schedule shall be subject to the provisions of Section 296 of the Income Tax Act, 1961. Rule 91 of the Income Tax Rules, 1962 prohibits transfer of money from the fund to the employer. The prohibition is on the transfer of money legitimately coming to the fund as the lawful contribution of the employer. Such money cannot be transferred to the employer on any pretext. However, a situation may arise when the employer may by mistake pay excess to the fund. The prohibition is on the transfer of money legitimately coming to the fund as the lawful contribution of the employer. Such money cannot be transferred to the employer on any pretext. However, a situation may arise when the employer may by mistake pay excess to the fund. Such excess payment cannot be legitimately received by the fund and even if received, legitimately retained and applied for the purposes of the trust or otherwise. Excess payment made by mistake would be governed by Section 72 of the Contract Act, 1872. Section 72 of the Contract Act, 1872 mandates a person who has received money, paid by mistake, to repay it. If the first petitioner has received excess payment from the respondent no. 3, it is obliged to refund the same to the respondent no. 3, in terms of Section 72 of the Contract Act, 1872. Rule 5 of Part B of the Fourth Schedule of the Income Tax Act, 1961 contemplates a situation where the approved fund may refund an amount to the employer. 15. Jharna Sarkar & Ors. (supra) has observed that, if a person enjoys a benefit de hors his right conferred by statute or by agreement he cannot claim continuation of the same and the other party is entitled to rectify such mistake and/or wrong. Naurang Singh & Ors. (supra) has held that, an evident mistake cannot constitute a valid basis for compelling a party to keep on repeating such mistake. 16. Whether or not the respondent no. 3 had paid any excess amount to the first petitioner and that too by mistake and if so, the quantum thereof, are the issues which require adjudication. As rightly pointed out by the learned Senior Advocate for the respondent nos. 8 and 9, the issue of refund of excess payment was raised in the reply dated June 8, 2007 to the show-cause notice dated April 11, 2007. At the second page of such reply, it has been contended by the respondent no. 3 that, a sum of Rs.1,211.99 Lakhs was paid over, above and in addition to the annual contribution which the respondent no. 3 was required to make under Rule 9(b) of the Fund Rules approved under the Income Tax Act, 1961. The respondent no. 3 had contended that, it was neither compulsorily nor contractually obligatory for it to make such additional contributions. 3 was required to make under Rule 9(b) of the Fund Rules approved under the Income Tax Act, 1961. The respondent no. 3 had contended that, it was neither compulsorily nor contractually obligatory for it to make such additional contributions. Such excess contribution was duly allowed as deduction in the Income Tax assessment for the relevant assessment year of the respondent no. 3. The applicability of Rule 91(2) of the Income Tax Rules, 1962 in the facts of the present case, was questioned. 17. The interplay of Rule 5 of Part B of the Fourth Schedule of the Income Tax Act, 1961 and Rule 91(2) of the Income Tax Rules, 1962, in the facts of the present case, is required to be adjudicated upon. Such an adjudication process will necessarily involve the issue whether the claim of excess payment as made by the respondent no. 3 in the reply dated June 8, 2007 is correct or not. The parties had jointly approached the Income Tax authority to accept and assist in the implementation of the settlement decreed by the Hon’ble Karnataka High Court. The parties have accepted that, the settlement contains a component of the alleged excess payment. Therefore, the Income Tax authority is required to decide whether the claim of excess payment made by the respondent no. 3 is correct in the light of the settlement arrived at and accepted by the Hon’ble Karnataka High Court or not. The authorities have to find out the quantum of payment required to be made by the respondent no.3, the quantum paid by the respondent no. 3 and the position after taking into account the settlement arrived. If such contentions are found factually correct, then, the question of applicability of Rule 91(2) of the Income Tax Rules, 1962 for the purpose of withdrawing the approval would not arise. On the other hand, if the claim of excess payment is not substantiated to be correct, then the Income Tax authority would be entitled to invoke Rule 91(2) of the Income Tax Rules, 1962 for the purpose of withdrawing the approval granted to the first petitioner. 18. Again as rightly pointed out on behalf of the respondent nos. 8 and 9, such an issue has not been dealt with by the impugned order. 18. Again as rightly pointed out on behalf of the respondent nos. 8 and 9, such an issue has not been dealt with by the impugned order. It has been contended on behalf of the petitioners that, such issue has not been raised, as the parties are ad idem on the fact that, there is an excess payment made by the respondent no. 3 warranting the first petitioner to refund the same. With respect, the issue was raised by the respondent no. 3 in the reply dated June 8, 2007. The issue is one of mixed question of fact and law. The show-cause notice and the reply thereto raises such an issue. The parties at issue are the Income Tax department and the respondent no. 3 as well as the first petitioner. It cannot be said, in the facts of the present case that, the Income Tax department had accepted that, there is an excess payment made by the respondent no. 3 to the first petitioner for the relevant years. The Income Tax department has also not accepted the quantum of the alleged excess payment. A consensus between the petitioner and the respondent no. 3 cannot bind the Income Tax department. 19. In such circumstances, it would be appropriate to set aside the impugned order and remand the matter to the Income Tax authority for the purpose of deciding the show-cause notice and the reply thereto in accordance with law. Needless to say that, the Income Tax authority is at liberty to hear such parties and consults such documents as it deems appropriate. The authority will pass a reasoned order which it will communicate to the parties it has heard forthwith thereafter. It is expected that, the authority will complete the entire exercise within six weeks from the date of communication of this order to it. 20. The issue raised in this writ petition is answered accordingly. W.P. No. 2079 (W) of 2017 is disposed of accordingly. No order as to costs. 21. CAN 5470 of 2017 is an application seeking early disposal of the writ petition. In view of the disposal of the writ petition itself, no further order need be passed in such application. CAN 5470 of 2017 is disposed of accordingly. No order as to costs. 22. No order as to costs. 21. CAN 5470 of 2017 is an application seeking early disposal of the writ petition. In view of the disposal of the writ petition itself, no further order need be passed in such application. CAN 5470 of 2017 is disposed of accordingly. No order as to costs. 22. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.