T.Neeraj (Trust), Tiruppur V. ITO, Tiruppur

CO 150/CHNY/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8097 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 23-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: G SARANGAN; T S RAJARAJESWARAN
• Keywords: Recovery proceedings; Maximum Marginal Rate
• Section: 12; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE DR. O. K. NARAYANAN, VICE PRESIDENT AND SHRI V. DURGA RAO, JUDICIAL MEMBER ------- ITA NO. 1466/MDS/2012 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER, WARD-I(3), TIRUPUR. V. M/S. T. NEERAJ TRUST, 14, DMR GARDEN, P,.N. ROAD, TIRUPUR-641 602 (P AN : AAATT6629A) (APPELLANT) (RESPONDENT) A N D C.O. NO. 150/MDS/2012 (ARISING OUT OF ITA NO.1466/MDS/2012) ASSESSMENT YEAR : 2007-08 M/S. T. NEERAJ TRUST, V. THE I NCOME TAX OFFICER, 14, DMR GARDEN, WARD- I(3), P,.N. ROAD, T IRUPUR. TIRUPUR-641 602. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI SHAJI P. JACOB, ADDL. CIT ASSESSEE BY : SHRI G. SARANGAN, SR. ADVOCAT E & SHRI T.S.RAJARAJESWARAN, CA ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 2 : DATE OF HEARING : 05.12.2012 DATE OF PRONOUNCEMENT : 05.12.2012 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE CIT(APPEALS)-II, COIMBATORE DATED 28-03-2012 FOR THE ASSESSMENT YEAR 2007-08. 2. FACTS IN BRIEF ARE THAT ONE SMT. B. RAJALAKSHMI HAS CREATED THE TRUST WITH THE OBJECT TO PROVIDE FOR TH E MAINTENANCE, FOREIGN TRAVEL, EDUCATION, MEDICAL TRE ATMENT AND NECESSITIES OF LIFE, WELL BEING, WELFARE AND PROSPE RITY OF SHRI R.A. THIRUMOORTHY (HUF) AND MINOR T. NEERAJ, SON OF SHRI R.A. THIRUMOORTHY, SHRI R.A. THIRUMOORTHY AND SMT. B. ROO PA, W/O SHRI R.A. THIRUMOORTHY, WHO ARE MEMBERS OF BOARD OF TRUSTEES. AS PER THE TRUST DEED, THE INCOME OF TH E TRUST IS TO BE APPORTIONED TO SHRI R.A. THIRUMOORTHY AND TO MIN OR T. NEERAJ IN THE RATIO OF 10% AND 90% RESPECTIVELY. T HE 90% OF THE INCOME OF THE TRUST IS TO BE TRANSFERRED TO COR PUS FUND AND HAS TO BE GIVEN TO MINOR T. NEERAJ AFTER HE ATTAINS MAJORITY. THE ASSESSEE CLAIMED THAT 90% OF THE INCOME WHICH ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 3 : ACCUMULATED AS PER THE TERMS OF THE DEED IS NOT TAX ABLE BUT THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASS ESSEE AND TAXED THE SAID INCOME IN THE HANDS OF THE TRUSTEES TREATING AS AOP. 3. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MAT TER BEFORE THE CIT(APPEALS). BEFORE THE LEARNED CIT(AP PEALS) IT WAS SUBMITTED THAT THE ASSESSING OFFICER WRONGLY TR EATED THE ASSESSEE AS AOP AND NOT AS A REPRESENTATIVE ASSESSE E. THE LEARNED CIT(APPEALS) AFTER CONSIDERING THE ABOVE SU BMISSION HAS OBSERVED AS UNDER : IN THIS REGARD IT MAY BE MENTIONED THAT AN AOP IS CONSTITUTED WHEN TWO OR MORE PERSONS JOIN VOLUNTARILY IN A COMMON PURPOSE OR COMMON ACTION WITH THE OBJECT OF PRODUCING INCOME, PROFIT OR GAINS. IN THE INSTANT CASE THE BENEFICIARIES CANNOT BE SAID TO HAVE COME TOGETHER VOLUNTARILY TO PRODUCE AN INCOME, PROFIT OR GAINS. FURTHER, THE TRUSTEES DERIVE THEIR AUTHORITY TO DO CERTAIN ACTS NOT FROM THE BENEFICIARIES BUT FROM THE SETTLERS OF THE TRUST AND THEY PERFORM THEIR DUTIES AS PER THE TERMS OF THE TRUST DEED AND THEY ARE BOUND BY THE TERMS OF THE DEED. THE BENEFICIARIES OF THE TRUST ARE THUS MERE RECIPIENTS OF THE INCOME EARNED BY THE TRUST. ON THESE FACTS I AM INCLINED ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 4 : TO AGREE WITH THE VIEW OF THE APPELLANT THAT THE TRUSTEES CANNOT BE ASSESSED AS AN AOP. 4. SO FAR AS THE TAXABILITY OF THE INCOME IS CONCER NED, THE LEARNED CIT(APPEALS) OBSERVED THAT THE RIGHT OF THE BENEFICIARY IS THUS ONLY TO HAVE SHARE IN THE DIVISION OF THE C ORPUS OF THE TRUST UPON THE BENEFICIARY ATTAINING MAJORITY AND T ILL THAT PERIOD THE ACCUMULATED INCOME IS TO BE RETAINED BY THE TRU ST. IN SHORT, THE INCOME IN THE HANDS OF THE BENEFICIARY W OULD BE TAXABLE ONLY IN THE YEAR WHEN HE ATTAINS MAJORITY I N THAT VIEW OF THE MATTER AND IN THE LIGHT OF THE DECISION OF T HE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. MUTHUKRISHN AN (260 ITR 526) (MDS) SUCH INCOME COULD NOT BE TAXED IN TH E HANDS OUT THE TRUSTEE IN THE CURRENT YEAR AND ALLOWED THE APPEAL FILED BY THE ASSESSEE. 5. ON BEING AGGRIEVED, THE REVENUE HAS CARRIED THE MATTER BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE ISSUE IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBU NAL IN THE ASSESSEES OWN CASE IN ITA NOS. 2097/MDS/2008, 1131 , 1132 & 133/MDS/2009 AND 2523/MDS/2007 DATED 18-12-2009. THE ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 5 : RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS EX TRACTED AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND R ELEVANT RECORDS AS WELL AS THE DECISIONS RELIED UPON BY THE PARTIES. IN THIS CASE THE ASSESSING OFFICER HAS ASSESSED THE MI NOR BENEFICIARY'S SHARE OF 90% IN THE TRUST U/S 164. TH E FIRST QUESTION THAT ARISES IS WHETHER IN THE FACTS AND CI RCUMSTANCES OF THE CASE, THE PROVISIONS OF SECTION 164 ARE APPLICA BLE OR NOT. AS PER THE TERMS OF THE TRUST DEED, THE BENEFICIARIES ARE IDENTIFIABLE AND THEIR SHARE IS ALSO DETERMINED. TH E PROVISIONS OF SECTION 164 READS AS UNDER:- 164. (1) SUBJECT TO THE PROVISIONS OF SUB-SECTIONS (2) AND (3), WHERE ANY INCOME IN RESPECT OF WHICH THE PERSONS ME NTIONED IN CLAUSES (III) AND (IV) OF SUB-SECTION (1) OF SECTIO N 160 ARE LIABLE AS REPRESENTATIVE ASSESSEES OR ANY PART THEREOF IS NOT SPECIFICALLY RECEIVABLE ON BEHALF OR FOR THE BENEFI T OF 61 ANY ONE PERSON OR WHERE THE INDIVIDUAL SHARES OF THE PE RSONS ON WHOSE BEHALF OR FOR WHOSE BENEFIT SUCH INCOME OR SU CH PART THEREOF IS RECEIVABLE ARE INDETERMINATE OR UNKNOWN (SUCH INCOME, SUCH PART OF THE INCOME AND SUCH PERSONS BE ING HEREAFTER IN THIS SECTION REFERRED TO AS RELEVANT INCOME, PART OF RELEVANT INCOME AND BENEFICIARIES, RESP ECTIVELY), TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF RELEVANT INCOME AT THE MAXIMUM MARGINAL RATE. PROVIDED THAT IN A CASE WHERE (I) NONE OF THE BENEFICIARIES HAS ANY OTHER INCOME CHARGEABLE UNDER THIS ACT EXCEEDING THE MAXIMUM AMOUNT NOT CHARGEABLE TO TAX IN THE CASE OF AN ASSOCIATION OF PERSONS OR IS A BENEFICIARY UNDER AN Y OTHER TRUST; OR (II) THE RELEVANT INCOME OR PART OF RELEVANT INCOM E IS RECEIVABLE UNDER A TRUST DECLARED BY ANY PERSON BY WILL AND SUCH TRUST IS THE ONLY TRUST SO DECLARED BY HIM ; OR ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 6 : (III) THE RELEVANT INCOME OR PART OF RELEVANT INCO ME IS RECEIVABLE UNDER A TRUST CREATED BEFORE THE 1ST DAY OF MARCH, 1970, BY A NON-TESTAMENTARY INSTRUMENT AND T HE ASSESSING OFFICER IS SATISFIED, HAVING REGARD TO AL L THE CIRCUMSTANCES EXISTING AT THE RELEVANT TIME, THAT T HE TRUST WAS CREATED BONA FIDE EXCLUSIVELY FOR THE BENEFIT O F THE RELATIVES OF THE SETTLOR, OR WHERE THE SETTLOR IS A HINDU UNDIVIDED FAMILY, EXCLUSIVELY FOR THE BENEFIT OF TH E MEMBERS OF SUCH FAMILY, IN CIRCUMSTANCES WHERE SUCH RELATIVES OR MEMBERS WERE MAINLY DEPENDENT ON THE SETTLOR FOR THEIR SUPPORT AND MAINTENANCE; OR (IV) THE RELEVANT INCOME IS RECEIVABLE BY THE TRUS TEES ON BEHALF OF A PROVIDENT FUND, SUPERANNUATION FUND, GRATUITY FUND, PENSION FUND OR ANY OTHER FUND CREAT ED BONA FIDE BY A PERSON CARRYING ON A BUSINESS OR PROFESSION EXCLUSIVELY FOR THE BENEFIT OF PERSONS EMPLOYED IN SUCH BUSINESS OR PROFESSION, TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PAR T OF RELEVANT INCOME AS IF IT WERE THE TOTAL INCOME OF A N ASSOCIATION OF PERSONS : PROVIDED FURTHER THAT WHERE ANY INCOME IN RESPECT O F WHICH THE PERSON MENTIONED IN CLAUSE (IV) OF SUB-SECTION (1) OF SECTION 160 IS LIABLE AS REPRESENTATIVE ASSESSEE CONSISTS O F, OR INCLUDES, PROFITS AND GAINS OF BUSINESS, THE PRECEDING PROVIS O SHALL APPLY ONLY IF SUCH PROFITS AND GAINS ARE RECEIVABLE UNDER A TRUST DECLARED BY ANY PERSON BY WILL EXCLUSIVELY FOR THE BENEFIT OF ANY RELATIVE DEPENDENT ON HIM FOR SUPPORT AND MAINTENAN CE, AND SUCH TRUST IS THE ONLY TRUST SO DECLARED BY HIM. (2) IN THE CASE OF RELEVANT INCOME WHICH IS DERIVE D FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, OR WHICH IS OF THE NATURE REFERRED TO IN SUB-CLAUSE (IIA) OF CLAUSE (24) OF SECTION 2, OR WHICH IS OF T HE NATURE REFERRED TO IN SUB-SECTION (4A) OF SECTION 11, TAX SHALL BE CHARGED ON SO MUCH OF THE RELEVANT INCOME AS IS NOT EXEMPT UNDER SECTION 11 OR SECTION 12, AS IF THE RELEVANT INCOME NOT SO EXEMPT WERE THE INCOME OF AN ASSOCIATION OF PERSONS : PROVIDED THAT IN A CASE WHERE THE WHOLE OR ANY PART OF THE RELEVANT INCOME IS NOT EXEMPT UNDER SECTION 11 OR S ECTION 12 BY VIRTUE OF THE PROVISIONS CONTAINED IN CLAUSE (C) OR CLAUSE (D) OF SUB-SECTION (1) OF SECTION 13, TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF RELEVANT INCOME AT THE M AXIMUM MARGINAL RATE. ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 7 : (3) IN A CASE WHERE THE RELEVANT INCOME IS DERIVED FROM PROPERTY HELD UNDER TRUST IN PART ONLY FOR CHARITAB LE OR RELIGIOUS PURPOSES OR IS OF THE NATURE REFERRED TO IN SUB-CLAUSE (IIA) OF CLAUSE (24) OF SECTION 2 OR IS OF THE NATU RE REFERRED TO IN SUB-SECTION (4A) OF SECTION 11, AND EITHER THE RELE VANT INCOME APPLICABLE TO PURPOSES OTHER THAN CHARITABLE OR REL IGIOUS PURPOSES (OR ANY PART THEREOF) IS NOT SPECIFICALLY RECEIVABLE ON BEHALF OR FOR THE BENEFIT OF ANY ONE PERSON OR THE INDIVIDUAL SHARES OF THE BENEFICIARIES IN THE INCOME SO APPLIC ABLE ARE INDETERMINATE OR UNKNOWN, THE TAX CHARGEABLE ON THE RELEVANT INCOME SHALL BE THE AGGREGATE OF (A) THE TAX WHICH WOULD BE CHARGEABLE ON THAT PART OF THE RELEVANT INCOME WHICH IS APPLICABLE TO CHARITABLE O R RELIGIOUS PURPOSES (AS REDUCED BY THE INCOME, IF AN Y, WHICH IS EXEMPT UNDER SECTION 11) AS IF SUCH PART ( OR SUCH PART AS SO REDUCED) WERE THE TOTAL INCOME OF A N ASSOCIATION OF PERSONS; AND (B) THE TAX ON THAT PART OF THE RELEVANT INCOME WH ICH IS APPLICABLE TO PURPOSES OTHER THAN CHARITABLE OR REL IGIOUS PURPOSES, AND WHICH IS EITHER NOT SPECIFICALLY RECE IVABLE ON BEHALF OR FOR THE BENEFIT OF ANY ONE PERSON OR I N RESPECT OF WHICH THE SHARES OF THE BENEFICIARIES AR E INDETERMINATE OR UNKNOWN, AT THE MAXIMUM MARGINAL RATE : PROVIDED THAT IN A CASE WHERE (I) NONE OF THE BENEFICIARIES IN RESPECT OF THE PA RT OF THE RELEVANT INCOME WHICH IS NOT APPLICABLE TO CHARITAB LE OR RELIGIOUS PURPOSES HAS ANY OTHER INCOME CHARGEABLE UNDER THIS ACT EXCEEDING THE MAXIMUM AMOUNT NOT CHARGEABLE TO TAX IN THE CASE OF AN ASSOCIATION OF PERSONS OR IS A BENEFICIARY UNDER ANY OTHER TRUST; OR (II) THE RELEVANT INCOME IS RECEIVABLE UNDER A TRU ST DECLARED BY ANY PERSON BY WILL AND SUCH TRUST IS THE ONLY TR UST SO DECLARED BY HIM; OR (III) THE RELEVANT INCOME IS RECEIVABLE UNDER A TR UST CREATED BEFORE THE 1ST DAY OF MARCH, 1970, BY A NON-TESTAMENTARY INSTRUMENT AND THE ASSESSING OFFICER IS SATISFIED, HAVING REGARD TO ALL THE CIRCUMSTANCES EXISTING AT THE RELEVANT TIME, THAT T HE TRUST, TO THE EXTENT IT IS NOT FOR CHARITABLE OR ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 8 : RELIGIOUS PURPOSES, WAS CREATED BONA FIDE EXCLUSIVELY FOR THE BENEFIT OF THE RELATIVES OF THE SETTLOR, OR WHERE THE SETTLER IS A HINDU UNDIVIDED FAMILY, EXCLUSIVELY FOR THE BENEFIT OF THE MEMBERS OF SUCH FAMILY, IN CIRCUMSTANCES WHERE SUCH RELATIVES OR MEMBERS WERE MAINLY DEPENDENT ON THE SETTLOR FOR THEIR SUPPORT AND MAINTENANCE, TAX SHALL BE CHARGED ON THE RELEVANT INCOME (AS RED UCED BY THE INCOME, IF ANY, WHICH IS EXEMPT UNDER SECTIO N 11) WERE THE TOTAL INCOME OF AN ASSOCIATION OF PERSONS : PROVIDED FURTHER THAT WHERE THE RELEVANT INCOME CON SISTS OF, OR INCLUDES, PROFITS AND GAINS OF BUSINESS, THE PRECEDING PROVISO SHALL APPLY ONLY IF THE INCOME IS RECEIVABLE UNDER A TRUST DECLARED BY ANY PERSON BY WILL EXCLUSIVELY FOR THE BENEFIT OF ANY RELATIVE DEPENDE NT ON HIM FOR SUPPORT AND MAINTENANCE, AND SUCH TRUST IS THE ONLY TRUST SO DECLARED BY HIM : PROVIDED ALSO THAT IN A CASE WHERE THE WHOLE OR ANY PART OF THE RELEVANT INCOME IS NOT EXEMPT UNDER SECTION 11 OR SECTION 12 BY VIRTUE OF THE PROVISIONS CONTAINED IN CLAUSE (C) OR CLAUSE (D) OF SUB-SECTION (1) OF SECTION 13, TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF RELEVA NT INCOME AT THE MAXIMUM MARGINAL RATE. 7. FROM THE SUB-SECTION (1) TO SECTION 164, IT IS EMPATHETICALLY CLEAR THAT SUCH INCOME OR SUCH PART THEREOF IS RECE IVABLE OR INDETERMINATE OR UNKNOWN. TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF THE RELEVANT INCOME AT THE MAXIMU M MARGINAL RATE IN THE HANDS OF THE REPRESENTATIVE ASSESSEE. T HEREFORE, SECTION 164 APPLIES IN THE CASE WHERE ANY INCOME IS ASSESSA BLE IN THE HANDS OF THE REPRESENTATIVE ASSESSEE BUT SUCH INCOME OR P ART THEREOF IS NOT DETERMINATE OR KNOWN. IN THE CASE IN HAND, WHEN THE BENEFICIARIES ARE IDENTIFIABLE AND THEIR SHARE OF INCOME OF THE T RUST IS DETERMINATE, THEN FOR CHARGING TAX, THE PROVISIONS OF SECTION 164 CANNOT BE INVOKED. ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 9 : 8. NOW, THE QUESTION REMAINS WHETHER THE INCOME IS ASSESSABLE IN THE HANDS OF THE REPRESENTATIVE ASSESSEE UNDER THE PROVISIONS OF SECTION 161. SUB-SECTION (1) OF SECTION 161 STIPULA TES THAT THE ASSESSMENT SHALL BE DEEMED TO BE MADE UPON THE REPR ESENTATIVE ASSESSEE AND THE TAX SHALL BE LEVIED UPON AND RECOV ERED FROM HIM IN LIKE MANNER AND TO THE SAME EXTENT AS IT WOULD B E LEVIABLE UPON AND RECOVERABLE FROM THE PERSON REPRESENTED BY HIM. THUS, THE LIABILITY OF THE REPRESENTATIVE ASSESSEE FOR LEVY A ND RECOVERY OF TAX IS NOT MORE THAN THE LEVY AND RECOVERY OF THE TAX OF THE PERSON REPRESENTED BY THE REPRESENTATIVE ASSESSEE. 9. IN THE CASE OF MUTHUKRISHNAN 260 ITR 526, THE H ON'BLE JURISDICTIONAL HIGH COURT HAS HELD AT P.531 & 532 A S UNDER:- IN THE ASSESSMENT YEAR WITH WHICH WE ARE CONCERNED , HAVING REGARD TO THE TERMS OF THE TRUST, THE BENEFICIARIES HAD NO RIGHT TO RECEIVE ANY PART OF THE CORPUS OF THE TRUST TO WHIC H THE INCOME RECEIVED BY THE TRUSTEES BY WAY OF PRIZE MONEY ON T HE LOTTERY TICKET WAS REQUIRED TO BE CREDITED. THE RIGHT TO THE BENEF ICIARY WAS ONLY TO SHARE IN THE DIVISION OF THAT CORPUS AT THE END OF THE FIFTEEN YEAR PERIOD OR SOONER, IF ALL THE BENEFICIARIES UNANIMOU SLY AGREED TO TERMINATE THE TRUST. THE BENEFICIARIES COULD NOT HA VE BEEN ASSESSED TO TAX IN RESPECT OF ANY PART OF THIS PRIZE MONEY I N THE YEAR IN WHICH THAT MONEY WAS RECEIVED BY THE TRUST. THE PRIZE MONEY RECEIVED BY THE TRUSTEES ON THE LOT TERY TICKETS NOT BEING AN AMOUNT IN WHICH THE BENEFICIARIES, WHOSE I DENTITIES ARE KNOWN AND WHOSE SHARES ARE DETERMINATE, COULD CLAIM A SHARE IN THE YEAR OF ACCOUNT AND WHICH AMOUNT COULD NOT HAVE BEEN ASSESSED IN THEIR HANDS AS THEIR INCOME IN WHOLE OR IN PART, THEREFORE, WAS NOT ASSESSABLE IN THE HANDS OF THE T RUSTEES WHO ONLY REPRESENTED THE BENEFICIARIES FOR THE PURPOSES OF A SSESSMENT AND WHO COULD ONLY BE ASSESSED IN THE SAME MANNER AND T O THE SAME ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 10 : EXTENT AS THE BENEFICIARIES COULD HAVE BEEN ASSESSE D. THE TRUSTEES ASSUMED NO HIGHER LIABILITY THAN THE BENEFICIARIES THEMSELVES WERE REQUIRED TO BEAR UNDER THE LAW. IF THE BENEFICIARY WAS NOT TO BE TAXED, THAT TAX COULD NOT BE LEVIED ON THE TRUSTEE WHO ONLY REPRESENTED THE BENEFICIARY AND NO MORE, IN CASES W HERE THE IDENTITY OF THE BENEFICIARY WAS KNOWN AND THE SHARE OF THE BENEFICIARY WAS DETERMINATE. 10. THEREFORE, WHAT CAN BE TAXED IN THE HANDS OF T HE TRUSTEE IN THE CAPACITY OF REPRESENTATIVE ASSESSEE IS ONLY THE INCOME WHICH THE MINOR BENEFICIARY HAS RECEIVED OR DEEMED TO HAV E RECEIVED OR THE INCOME WHICH ACCRUED OR DEEMED TO HAVE ACCRUED DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER CONSID ERATION. IN THE CASE IN HAND, THE MINOR BENEFICIARY'S SHARE IN THE INCOME IS ACCUMULATED IN THE CORPUS OF THE TRUST, WHICH IS TO BE INVESTED FURTHER AND THE ASSESSEE CAN RECEIVE THE ACCUMULATE D INCOME ONLY AFTER ATTAINING MAJORITY. THEREFORE, WHEN THE MINOR CANNOT RECEIVE ANY INCOME BEFORE ATTAINING THE AGE OF MAJORITY, HE CANNOT BE TAXED FOR THE SAID INCOME WHICH IS NOT RECEIVABLE OR SAID TO HAVE NOT BEEN ACCRUED TO THE ASSESSEE DURING THE RELEVANT PERIOD THEN THE TRUST CANNOT BE ASSESSED IN THE STATUS OF REPRESENTATIVE ASSESSEE BECAUSE THE LIABILITY OF THE TRUST CANNOT BE MORE THAN THE LIABILITY OF THE BENEFICIARY. 11. IN THE CASE OF GANESH CHHABABHAI VALLABHAI PAT EL VS. CIT 258 ITR 193 (GUJ), THE ISSUE WAS WHETHER THE IN COME TAX OFFICER WAS JUSTIFIED IN PASSING THE ORDER U/S 154 OF THE INCOME TAX ACT TO ASSESS THE SHARE OF THE BENEFICIARY'S IN COME IN THE HANDS OF THE TRUSTEES U/S 161 OF THE ACT. THE HON'BLE HIG H COURT HAS OBSERVED THAT, THE ISSUE THAT THERE WAS NO INCOME W HICH WAS TO BE PAID AFTER 19 YEARS WAS NEVER RAISED AT THE TIME OF ASSESSMENT. THE SHOW CAUSE NOTICE FOR RECTIFICATION ISSUED BY THE I NCOME TAX ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 11 : OFFICER WAS LIMITED ONLY TO THE QUESTION OF APPLYIN G THE CORRECT RATE OF TAX WHICH UNDISPUTEDLY WOULD BE THE RATE ON THE BASIS OF THE TOTAL INCOME OF THE BENEFICIARIES, WHICH ASPECT EMA NATED FROM THE PROVISIONS OF SECTION 161(1) WAS OVERLOOKED AT THE TIME OF ASSESSMENT. THEREFORE, IN VIEW OF THE DECISION OF T HE HON'BLE JURISDICTIONAL HIGH COURT SUPRA ON IDENTICAL ISSUE, WE FIND NO ERROR OR ILLEGALITY IN THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS). THE SAME IS UPHELD. 12. IN THE RESULT, ALL APPEALS FILED BY THE REVENU E ARE DISMISSED. 6. IN VIEW OF THE ABOVE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(APPEALS). THEREFORE, THE ORDER PASSED BY THE L EARNED CIT(APPEALS) IS CONFIRMED AND THE APPEAL FILED BY T HE REVENUE IS DISMISSED. 7. THE CROSS OBJECTION FILED BY THE ASSESSEE IS ONL Y IN SUPPORT OF THE ORDER PASSED BY THE LEARNED CIT(APPEALS). IN V IEW OF OUR DECISION IN THE APPEAL FILED BY THE REVENUE IN ITA NO. 1466/MDS/2012 ABOVE, THE CROSS OBJECTION FILED BY T HE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED AS INF RUCTUOUS. 8. IN THE RESULT, BOTH THE APPEAL FILED BY THE REVE NUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED . ITA NO.1466/MDS /2012 & CO 150/MDS/2012 : 12 : ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON WEDNESDAY, THE 05 TH OF DECEMBER, 2012, AT CHENNAI. SD/- SD/- (DR. O. K. NARAYANAN) (V.DURGA RAO) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 05 TH DECEMBER, 2012. H. COPY TO: ASSESSEE/AO/CIT(A)/CIT/D.R./GUARD FILE