NANJI GANPAT CHHEDA DISCREATIONARY TRUST, MUMBAI V. ITO 20(2)(4), MUMBAI

ITA 5618/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8718 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 24-01-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 14-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PANKAJ TOPRANI
• Keywords: Maximum Marginal Rate

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.5618/MUM/2015 ASSESSMENT YEAR: 2012-13 NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 7, KRASHNA MAHAL, 94, T.V. PARMESHWARAN MARG, MATUNGA, MUMBAI-400019 / VS. INCOME TAX OFFICER-20(2)(4), 409, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 ( !'# $ /ASSESSEE) ( / REVENUE) PAN. NO . AAAAN4192K % & $ ' / DATE OF HEARING : 24/01/2017 & $ ' / DATE OF ORDER: 27/01/2017 !'# $ ! / ASSESSEE BY SHRI PANKAJ TOPRANI ! / REVENUE BY MISS ANUPAMA SINGLA-DR ITA NO.5618/MUM/2015 M/S NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 02/11/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI PANKAJ TOPRANI, DID NOT PRESS TH E ORIGINAL GROUNDS OF APPEAL AND PRESSED ONLY THE ADDITIONAL G ROUND RAISED BY THE ASSESSEE DATED 16/01/2017. THE LD. DR , MISS. ANUPAMA SINGLA, HAD NO OBJECTION TO THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE, THEREFORE, THE MAIN GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS NOT PRESSED. THE Q UESTION RAISED BEFORE US, WHETHER THE DISCRETIONARY TRUST I S CHARGEABLE AT MAXIMUM MARGINAL RATE OF TAX OR NORMA L RATE OF TAX. THE LD. COUNSEL INVITED OUR ATTENTION TO S ECTION 164(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). RELIANCE WAS PLACED UPON THE DECISION IN THE CASE O F ASSESSEE ITSELF FOR ASSESSMENT YEAR 2013-14 (ITA NO.5619/MUM/2015) ORDER DATED 09/03/2016, WHEREIN, THE APPEAL WAS ALLOWED FOR STATISTICAL PURPOSES. THE LD . DR THOUGH DEFENDED THE ADDITION BUT HAD NO OBJECTION I F THE SAME IS ALLOWED FOR STATISTICAL PURPOSES. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE CO MING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT ITA NO.5618/MUM/2015 M/S NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 3 PORTION FROM THE AFORESAID ORDER OF THE TRIBUNAL DA TED 09/03/2016 FOR READY REFERENCE AND ANALYSIS:- THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 02/11/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND, ALO NGWITH OTHER GROUNDS, THAT THE LD. FIRST APPELLATE AUTHORI TY DID NOT APPRECIATE THAT THE ASSESSEE TRUST WAS DECLARED BY LATE SMT. MANIBAI CHHEDA BY WILL AND IT IS A ONLY TRUST, SO D ECLARED BY HER, THUS THE PROVISIONS OF CLAUSE (II) OF THE FIRS T PROVISO TO SEC. 164(1) IS ALSO APPLICABLE, THEREFORE, THE APPLICABL E RATE OF TAX IS THAT OF AOP AND NOT THE MAXIMUM MARGINAL RATE OF TAX. 2. DURING HEARING THE LD. COUNSEL FOR THE ASSESSEE, SHRI PANKAJ R. TOPRANI ADVANCED ARGUMENTS WHICH IS IDENT ICAL TO THE GROUND RAISED. ON THE OTHER HAND, THE LD. DR, SHRI VISHWAS JADHAV CONTENDED THAT THIS GROUND WAS NOT R AISED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , THEREFORE, CANNOT BE RAISED BEFORE THIS TRIBUNAL. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS THE LE GAL GROUND, RAISED FOR THE FIRST TIME BEFORE THIS TRIBUNAL IS C ONCERNED, I AM OF THE VIEW THAT IN VIEW OF THE DECISION FROM HO NBLE APEX COURT IN NTPC LIMITED V. CIT [1998] 229 ITR 383 (SC ), A LEGAL GROUND CAN BE RAISED BEFORE THIS TRIBUNAL. IT IS A LSO NOTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS RECORDED A FINDING THAT THE TRUST WAS CREATED BY A WILL, THEREFORE, THERE IS A MERIT IN THE SUBMISSIONS OF T HE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE, DURING HEARING AL SO PLEADED THAT IF THERE IS AN AMBIGUITY, THEN, IN VIEW OF THE DECISION FROM HONBLE APEX COURT IN VEGETABLE PRODUCTS (89 ITR 23 6) IT HAS TO BE DECIDED IN FAVOUR OF THE ASSESSEE. WITHOUT C OMMENTING FURTHER, I ADMIT THE LEGAL GROUND AND SEND THE SAME TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO EXAMINE THE CLAIM OF THE ASSESSEE AND AFTER CONSIDERING THE FACTS, ITA NO.5618/MUM/2015 M/S NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 4 DECIDE IN ACCORDANCE WITH LAW. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. CONSIDERING THE TOTALITY OF FACTS, IN VIEW OF THE D ECISION FROM HON'BLE APEX COURT IN THE CASE OF NTPC LTD. VS CIT (1998) 229 ITR 383 (SC), THE ADDITIONAL GROUND RAIS ED BY THE ASSESSEE IS ADMITTED AND SENT TO THE FILE OF THE LD . COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUD ICATION IN ACCORDANCE WITH LAW. THE LD. COMMISSIONER OF INC OME TAX (APPEAL) IS DIRECTED TO EXAMINE THE FACTUAL MAT RIX, ALSO CONSIDERING THE PROVISION TO CLAUSE (II) OF THE FIR ST PROVISO TO SECTION 164(1) OF THE ACT. THE ASSESSEE BE GIVEN OP PORTUNITY OF BEING HEARD. THUS, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/01/2017. SD/- SD/- ( MAN OJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 27/01/2017 F{X~{T? P.S/. . . ITA NO.5618/MUM/2015 M/S NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI, 5. 34 .$! , 0 +' ! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. ! / BY ORDER, /3+$ .$ //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI