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

ITA 5619/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3619 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 14-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAVDR
• Assessee Lawyers: PANKAR R TOPRANI
• Keywords: Maximum Marginal Rate

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.5619/MUM/2015 ASSESSMENT YEAR: 2013-14 NANJI GANPAT CHHEDA DISCRETIONARY TRUST, 7, KRASHNA MAHAL, 94, T.V. PARMESHWARAN MARG, MATUNGA, MUMBAI-400019 / VS. ITO-20(2)(4), 409, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 / ASSESSEE / REVENUE P.A. NO . AAAAN4192K $ % & / ASSESSEE BY SHRI PANKAR R. TOPRANI $ % & / REVENUE BY SHRI VISHWAS JADHAV-DR / DATE OF HEARING 08/03/2016 & / DATE OF ORDER: 09/03/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 02/11/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GR OUND, ALONGWITH OTHER GROUNDS, THAT THE LD. FIRST APPELLA TE ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 2 AUTHORITY DID NOT APPRECIATE THAT THE ASSESSEE TRUS T WAS DECLARED BY LATE SMT. MANIBAI CHHEDA BY WILL AND IT IS A ONLY TRUST, SO DECLARED BY HER, THUS THE PROVISIONS OF CLAUSE (II) OF THE FIRST PROVISO TO SEC. 164(1) IS ALSO APPLICABLE, THEREFORE, THE APPLICABLE RATE OF TAX I S 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. D R, SHRI VISHWAS JADHAV CONTENDED THAT THIS GROUND WAS NOT RAISED 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 TRIBU NAL IS CONCERNED, I AM OF THE VIEW THAT IN VIEW OF THE DEC ISION FROM HONBLE APEX COURT IN NTPC LIMITED V. CIT [199 8] 229 ITR 383 (SC), A LEGAL GROUND CAN BE RAISED BEFO RE THIS TRIBUNAL. IT IS ALSO NOTED THAT THE LD. COMMISSION ER OF INCOME TAX (APPEALS) HAS RECORDED A FINDING THAT TH E TRUST WAS CREATED BY A WILL, THEREFORE, THERE IS A MERIT IN THE SUBMISSIONS OF THE ASSESSEE. THE LD. COUNSEL FOR TH E ASSESSEE, DURING HEARING ALSO PLEADED THAT IF THERE IS AN AMBIGUITY, THEN, IN VIEW OF THE DECISION FROM HONB LE APEX COURT IN VEGETABLE PRODUCTS (89 ITR 236) IT HAS TO BE ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 3 DECIDED IN FAVOUR OF THE ASSESSEE. WITHOUT COMMENT ING 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 CONSIDE RING THE FACTS, DECIDE IN ACCORDANCE WITH LAW. THUS, TH E APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 08/03/2016. (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 09/03/2016 SSL ? SR. P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI