Vincentian Madras Society, CHENNAI V. DCIT, CHENNAI

ITA 1894/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9603 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 04-02-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 25-08-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: G BASKAR
• Keywords: Capital asset; Revision of order; Charitable institution; Maximum Marginal Rate; Earning of tax free income; Benefit of exemption
• Section: 143(3); 12AA; 263

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 1894/MDS/2015 / ASSESSMENT YEAR :2011 - 12 M/S. VINCENTIAN MADRAS SOCIETY, NO. 09, VINCENTIAN NILAYAM, RAILWAY COLONY, AMINJIKARAI, CHENNAI 600 029. [PAN: A A A TV2453L ] VS. THE DEPUTY COMMISSIONER OF I NCOME TAX (EXEMPTIONS) III , C HENNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI G. BASKAR, ADVOCATE / RESPONDENT BY : SHRI A. B. KOLI , J CIT / DATE OF HEARING : 04.02.2016 / DATE OF P RONOUNCEMENT : 26 . 0 4 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 17, CHENN AI DATED 20.02.2015 RELEVANT TO THE ASSESSMENT YEAR 2011 - 12. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGARD TO CONFIRMATION OF DISALLOWANCE UNDER SECTION 11(5) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. I.T.A. NO . 1894 /M/ 15 2 2. BRIEF FACTS O F THE CASE ARE THAT THE ASSESSEE IS A PUBLIC CHARITABLE TRUST REGISTERED UNDER SECTION 12AA OF THE ACT AND ENGAGED IN YEOMAN SERVICE, GENERALLY AND SPECIALLY TO ORPHANAGES, HOSPITALS, CHURCHES AND EDUCATION. THE ASSESSEE HAS FILED ITS RETURN DATED 29.09.20 11 DECLARING NIL INCOME. THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SECURITY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED. DETAILS CALLED FOR WERE FILED BY THE ASSESSEE AND AFTER SCRUTINIZING THE DETAILS FILED AND AFTER DISCUSSION WITH THE AR OF THE ASSESSEE, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON 14.03.2014 DETERMINING THE TOTAL INCOME AT .73,94,752/ - BY REJECTING THE CLAIM OF EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT AS THE ASSESSEE HAS VIOLATED THE PROVISIONS OF THE ACT UNDER SECTION 11(5) R.W.S. 13(1)(D) OF THE ACT BY INVESTING ITS FUNDS TO THE EXTENT OF .17,00,000/ - IN KUMARI CHIT FUND. 3. ON APPEAL, BY CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, BUT, NOT ACCEPTING THE SAME, THE LD. CIT(A) CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE A SSESSEE BY STRONGLY RELYING ON THE DECISION IN THE CASE OF CIT V. WORKING WOMEN S FORUM [2015] 53 TAXMANN.COM 85 (MADRAS) SUBMITTED THAT ONLY SUCH PART OF INCOME WHICH WAS IN VIOLATIVE OF SECTION I.T.A. NO . 1894 /M/ 15 3 13(1)(D) OF THE ACT CAN BE BROUGHT TO TAX AT MAXIMUM MARGINA L RATE AND THE ENTIRE INCOME OF THE ASSESSEE CANNOT BE DENIED EXEMPTION UNDER SECTION 11 OF THE ACT. 5. ON THE OTHER HAND, THE LD. DR, BY REFERRING TO THE DECISION IN THE CASE OF GEORGE EDUCATIONAL MEDICAL & CHARITABLE SOCIETY V. CIT [2012 20 TAXMANN.CO M 638 (KER.), STRONGLY SUPPORTED THE ORDER PASSED BY THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS AN ADMITTED FACT THAT THE ASSESSEE, BY VIOLATING THE PROVISI ONS OF THE ACT UNDER SECTION 11(5) R.W.S. 13(1)(D) OF THE ACT INVESTED ITS FUNDS TO THE EXTENT OF .17,00,000/ - IN KUMARI CHIT FUND. THEREFORE, THE ASSESSING OFFICER DENIED EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT. ON APPEAL, AFTER CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE, THE LD. CIT(A) HAS OBSERVED THAT BY DEPOSITING .17,00,000/ - WITH KUMARI BENEFIT FUND IN CONTRAVENTION OF THE PROVISIONS OF SECTION 11(5) OF THE ACT, THE ASSESSEE HAS CAUSED SECTION 11 OF THE ACT TO BECOME INOPERATIVE AND REDUNDANT . ONCE SUCH AN ADVERSE PREDICAMENT IS CREATED AGAINST THE ASSESSEE, THE APPLICATION OF INCOME TOWARDS ACQUISITION OF CAPITAL ASSETS AND DONATIONS MADE CANNOT BE ALLOWED AS EXPENDITURE. ACCORDINGLY, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICE R. ON AN IDENTICAL ISSUE AND SIMILAR FACTS AND CIRCUMSTANCES, THE COORDINATE BENCH OF THE TRIBUNAL IN I.T.A. NO . 1894 /M/ 15 4 THE CASE OF DDIT(E) V. THE INDIA CEMENTS EDUCATIONAL SOCIETY IN I.T.A. NO. 1525/MDS/2010 ORDER DATED 20.01.2016 [(2 016) 46 ITR (TRIB) 80 (CHENNAI) HAS OBS ERVED AND HELD AS UNDER: 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, THE ASSESSEE ADVANCED AN AMOUNT OF . 39,66,50,000/ - ON 30.6.2006 TO M/S ANNA INVESTMENT PVT. LTD. AND THE CAPITAL GAIN ARISING ON SALE OF LAND AT NAVALUR EGATTUR AND THALAMBUR DURING THE FINANCIAL YEAR ON 31.3.2007. M/S ANNA INVESTMENT PVT. LTD HAVE RETURNED THE MONEY ON 31.3.2009 AND THE SAID AMOUNT WAS NOT INVESTED IN NEW ASSET WITHIN THE PREVIOUS YEAR, THEREFORE, EXEMPTION U/S 11(1)(A) IS NOT AVAILABLE TO THE ASSESSEE. THE CONTENTION OF THE LD. A.R OF THE ASSESSEE IS THAT ONLY THAT AMOUNT OF CAPITAL GAIN TO BE TAKEN OUT OF THE TOTAL INCOME OF THE ASSESSEE AND THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 11 ON THE BALANCE AMOUNT OF THE INC OME AND THE CAPITAL GAIN ONLY TO BE TAXED IN TERMS OF SEC. 164(2) OF THE ACT BY APPLYING THE RATE SPECIFIED IN SEC. 164 OF THE ACT. FOR THIS PURPOSE, HE RELIED ON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF DCIT(E) VS SHETH MAFATLAL GAGALBHAI FOUNDATI ON TRUST , 249 ITR 533. HE ALSO RELIED ON THE CBDT CIRCULAR NO.387 DATED 6.4.1984, 152 ITR 1(ST.) SPECIFICALLY PARA 28.6 STATING THAT WHERE A TRUST CONTRAVENES THE PROVISIONS OF SEC. 13(1)(C) OR (D) OF THE ACT, THE MAXIMUM MARGINAL RATE OF INCOME TAX WILL APPLY ONLY TO THAT PART OF THE INCOME WHICH HAS FORFEITED EXEMPTION UNDER THE SAID PROVISIONS. HE HAS ALSO RELIED ON THE JUDGMENT OF THE KARNATAKA HIGH COURT IN THE CASE OF CIT VS FR. MULLERS CHARITABLE INSTITUTIONS, 363 ITR 230, FOR THE PROPOSITION THAT W HENEVER THERE IS A VIOLATION U/S 11(5), THEN ONLY INCOME FROM SUCH INVESTMENT OR DEPOSIT WHICH HAS BEEN MADE IN VIOLATION OF 11(5) IS LIABLE TO BE TAXED AND THAT VIOLATION U/S 13(1)(D) DOES NOT TANTAMOUNT TO DENIAL OF EXEMPTION U/S 11 ON TOTAL INCOME OF TH E ASSESSEE. ACCORDING TO THE LD. AR, FOR VIOLATING SEC. 11(5), THE ENTIRE INCOME OF THE ASSESSEE - TRUST CANNOT BE ASSESSED TO TAX AND THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 11 OF THE ACT. 4. NOW, WE PROCEED TO EXAMINE SECTION 11 WHICH READS AS FOLLOW S: (A) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA ; AND, WHERE ANY SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICATION TO SUCH PUR POSES IN INDIA, TO THE EXTENT TO WHICH THE INCOME SO ACCUMULATED OR SET APART IS NOT IN EXCESS OF FIFTEEN PER CENT. OF THE INCOME FROM SUCH PROPERTY ; I.T.A. NO . 1894 /M/ 15 5 (B) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST IN PART ONLY FOR SUCH PURPOSES, THE TRUST HAVING BEEN CREATED BEFORE THE COMMENCEMENT OF THIS ACT, TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA ; AND WHERE ANY SUCH INCOME IS FINALLY SET APART FOR APPLICATION TO SUCH PURPOSES IN INDIA, TO THE EXTENT TO WHICH THE INCOME SO SET APART IS NOT IN EXCESS OF FIFTEEN PER CENT. OF THE INCOME FROM SUCH PROPERTY ; SEC. 13(1)(C) OF THE ACT READS AS FOLLOWS: SECTION 11 NOT TO APPLY IN CERTAIN CASES (1) NOTHING CONTAINED IN SECTION 11 OR SECTION 12 SHALL OPERATE SO AS TO EXCLUDE FROM THE TO TAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT THEREOF - (C) IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THEREOF - (I) IF SUCH TRUST OR INSTITUTION HAS BEEN CREATED OR ESTABL ISHED AFTER THE COMMENCEMENT OF THIS ACT AND UNDER THE TERMS OF THE TRUST OR THE RULES GOVERNING THE INSTITUTION, ANY PART OF SUCH INCOME ENURES, OR (II) IF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION (WHENEVER CREATED OR ESTABLISH ED) IS DURING THE PREVIOUS YEAR USED OR APPLIED, DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3) : PROVIDED THAT IN THE CASE OF A TRUST OR INSTITUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROV ISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3), IF SUCH USE OR APPLICA TION IS BY WAY OF COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY RULE GOVERNING THE INSTITUTION : PROVIDED FURTHER THAT IN THE CASE OF A TRUST FOR RELIGIOUS PURPOSES OR A RELIGIOUS INSTITUTION (WHENEVER CREATED OR ESTABLISHED) OR A TRUST FO R CHARITABLE PURPOSES OR A CHARITABLE INSTITUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROVISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PRO PERTY OF THE TRUST OR INSTITUTION FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3), IN SO FAR AS SUCH USE OR APPLICATION RELATES TO ANY PERIOD BEFORE THE 1ST DAY OF JUNE, 1970 ; I.T.A. NO . 1894 /M/ 15 6 5. AS PER SEC. 13, THE BENEFIT OF EXEMPTION FROM INCOME TAX IS NOT AVAILABLE IF ANY PART OF THEIR INCOME OR PROPERTY ENURES OR IS, DURING THE PREVIOUS YEAR, APPLIED, DIRECTLY OR INDIRECTLY, FOR THE BENEFIT OF THE AUTHOR, FOUNDER, SUBSTANTIAL CONTRIBUTOR OR RELATIVE AFORESAID OR FOR THE BENEFIT OF ANY CONCERN IN WHICH ANY SUCH AUTHOR, FOUNDER, SUBSTANTIAL CONTRIBUTOR OR RELATIVE HAS SUBSTANTIAL INTEREST. THE EXEMPTION FROM TAX WILL BE DENIED ONLY IF THEIR INCOME IS APPLIED FOR THE BENEFIT OF THE AUTHOR, FOUNDER ETC. OTHERWISE THAN IN COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY RULE GOVERNING THE INSTITUTION. THE REQUIREMENTS OF SEC. 13(1)(C)(II) IS THAT THE TRUST SHOULD APPLY THE FUNDS IN A CONCERN IN WHICH THEY THEMSELVES ARE INTERESTED, IF THERE WAS A MANDATORY PROVISION IN THE TRUST DEED FOR SUCH A P URPOSE. SUCH A MANDATE IN THE TRUST DEED SHOULD HAVE EXISTED AND COULD NOT HAVE BEEN BROUGHT IN BY AMENDING THE TRUST DEED AT A LATER STAGE AFTER THAT CRUCIAL DATE, EVEN IF THE TRUST DEED AUTHORIZED THE TRUSTEES TO AMEND THE TRUST DEED TO BRING IN THE MAND ATORY CONDITION OR REQUIREMENT FOR THEM TO INVEST FUNDS OF THE TRUST IN A CONCERN IN WHICH THEY MIGHT BE INTERESTED. IN IS ADMITTED FACT IN THIS CASE THAT THERE IS A VIOLATION OF SEC. 13(1)(C) OF THE ACT AS THE ASSESSEE INVESTED FUNDS IN A LIMITED COMPANY WHERE THE TRUSTEE IS THE MANAGING DIRECTOR AND HIS WIFE IS A DIRECTOR. BEING SO, PLACING RELIANCE ON THE JUDGMENT OF SUPREME COURT IN THE CASE OF CIT VS RATTAN TRUST, 227 ITR 356 AND THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS NAGARATHU VAISIYARGAL SANGAM, 246 ITR 164, WE HOLD THAT THE ASSESSING OFFICER WAS CORRECT IN INVOKING THE PROVISIONS OF SEC. 13(1)(C) OF THE ACT AND DENYING EXEMPTION TO THE ASSESSEE U/S 11 OF THE ACT. THE ASSESSEE RELIED ON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF SHETH MAFATLAL GAGALBHAI FOUNDATION TRUST (SUPRA) WHICH CANNOT BE CONSIDERED IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGMENT WHICH IS AGAINST THE ASSESSEE. 6. THE NEXT CONTENTION OF THE ASSESSEE IS THAT ONLY THAT PORTION OF INCOME I.E CAPITAL GAIN TO BE CONSIDERED FOR TAX IN TERMS OF SEC. 112 OF THE ACT AT MAXIMUM MARGINAL RATE AS PROPOSED BY THE ASSESSING OFFICER. IN OUR OPINION, THIS ARGUMENT OF THE ASSESSEE IS MISPLACED. SEC. 164(2) OF THE ACT READS AS FOLLOWS: (2) IN THE CASE OF RELEVAN T INCOME WHICH IS DERIVED 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 THE NATURE REFERRED TO IN SUB - SECTION(4A) OF SECTION 1 1, 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: I.T.A. NO . 1894 /M/ 15 7 PROVIDED THAT IN A CASE WHERE THE WHOLE OR ANY PART OF THE RE LEVANT 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 RELEVANT INCOME AT THE MAXIMUM MARGINAL RATE. 7. THE PROVISION OF SECTION 164(2) IS CONCERNED WITH TAXABILITY OF INCOME (I) WHICH IS DERIVED FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES OR (II) IN THE FORM OF VOLUNTARY CONTRIBUTION RECEIVED BY THE TRUST COVERED BY SE C. 2(24)(IIA), OR (III) THE NATURE REFERRED TO IN SEC. 11(4A). THE INCOME OF SUCH TRUST WHICH IS NOT EXEMPT U/S 11 OR SEC. 12 OF THE ACT SHALL BE CHARGED TO TAX AS IF SUCH EXEMPT INCOME IS THE INCOME OF AN AOP. THE PROVISO TO SEC. 164(2) INSERTED WITH EFFE CT FROM 1.4.1985 ENJOINS THAT WHERE THE NON - EXEMPT PORTION OF RELEVANT INCOME ARISES AS A CONSEQUENCE OF THE CONTRAVENTION OF THE PROVISIONS OF SEC. 13(1)(C) OR (D), THE SAID INCOME WOULD BE SUBJECT TO TAX AT THE MAXIMUM MARGINAL RATE. 8. ACCORDING TO T HE LD. REPRESENTATIVE FOR THE ASSESSEE, IN VIEW OF THE JUDGMENT OF THE KARNATAKA HIGH COURT IN THE CASE OF FR. MULLERS CHARITABLE INSTITUTIONS(SUPRA), THE RATE APPLICABLE AS PER SEC. 112 TO BE APPLIED. THIS JUDGMENT OF KARNATAKA HIGH COURT IS DELIVERED IN THE CONTEXT OF INVOKING PROVISIONS OF U/S 263 OF THE ACT AND DENYING BENEFIT U/S 11 OF THE ACT. THE HIGH COURT ADJUDICATED THE ISSUE AND OBSERVED THAT THE ASSESSING OFFICER HAS TAKEN ONE POSSIBLE VIEW THAT ONLY INCOME FROM SUCH INVESTMENT OR DEPOSITS WHICH HAS BEEN MADE IN VIOLATION OF SEC. 11(5) IS TO BE TAXED AND SUCH VIOLATION OF SEC. 11 DOES NOT TANTAMOUNT TO DENIAL OF EXEMPTION U/S 11 OF THE ACT AND THE ENTIRE INCOME OF THE ASSESSEE - TRUST CANNOT BE ASSESSED FOR TAX. HE ALSO RELIED ON THE ORDER OF THE M UMBAI TRIBUNAL IN THE CASE OF JAIN JAMSHETJI TATA TRUST VS. JT. DIT(E), 148 ITD 388, WHEREIN OBSERVED THAT WHEN THE SHORT TERM CAPITAL GAIN ARISING FROM THE SALE OF SHARES SUBJECTED TO STT IS CHARGEABLE TO TAX AT 15% THEN THE MAXIMUM MARGINAL RATE ON SUCH INCOME CANNOT EXCEED THE MAXIMUM RATE PROVIDED UNDER THE ACT. ACCORDINGLY, THE TRIBUNAL OBSERVED THAT SHORT TERM CAPITAL GAIN ON SALE OF SHARES ALREADY SUBJECTED TO STT, IS CHARGEABLE TO TAX AT MAXIMUM MARGINAL RATE WHICH CANNOT EXCEED THE RATE PROVIDED U/S 111A OF THE ACT INCOME - TAX ACT. THIS DECISION WAS FOLLOWED BY THE MUMBAI BENCH IN THE CASE OF MAHINDRA & MAHINDRA EMPLOYEES STOCK OPTION TRUST VS ADDL. CIT, I.T.A.NO. 2389/MUM/2015 DATED 21.10.2015, AND OBSERVED THAT CAPITAL GAIN IS TO BE ASSESSED BY APPLYING THE PROVISIONS OF SEC. 112 EVEN IF THE INCOME IS ASSESSED AS PER SEC. 164 OF THE ACT. FURTHER, WE FIND THAT IN BOTH THESE DECISIONS, THE MUMBAI BENCH HAS NOT CONSIDERED THE MEANING OF MAXIMUM MARGINAL RATE AS DEFINED IN SEC. 2(29C) OF THE ACT WHICH READS AS FOLLOWS: I.T.A. NO . 1894 /M/ 15 8 2(29C) MAXIMUM MARGINAL RATE MEANS THE RATE OF INCOME - TAX(INCLUDING SURCHARGE ON INCOME - TAX, IF ANY) APPLICABLE IN RELATION TO THE HIGHEST SLAB OF INCOME IN THE CASE OF AN INDIVIDUAL[ASSOCIATION OF PERSONS OR, AS THE C ASE MAY BE, BODY OF INDIVIDUALS] AS SPECIFIED IN THE FINANCE ACT OF THE RELEVANT YEAR] 9. BEING SO, THE ABOVE TWO DECISIONS OF THE MUMBAI BENCH CANNOT BE SAID THAT THEY LAID DOWN CORRECT PROPOSITION OF LAW. HENCE, THESE ARE NOT CONSIDERED. THEREFORE, T HE BENEFIT OF SEC. 112 OF THE ACT SO AS TO ASSESS THE GAIN FROM THE TRANSFER OF THE CAPITAL ASSET CANNOT BE GIVEN TO THE DEEMED AOP. ACCORDINGLY, THIS APPEAL OF THE REVENUE IS ALLOWED. 8. ACCORDINGLY, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINAT E BENCH OF THE TRIBUNAL IN THE CASE OF DDIT(E) V. THE INDIA CEMENTS EDUCATIONAL SOCIETY (SUPRA) , WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THE 26 TH APRIL, 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 26 . 0 4 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RE SPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.