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TMI Blog2015 (2) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Revenue in the present Reference Whether the Appellate Tribunal has correctly appreciated the facts on record so as to confirm the order passed by the Commissioner of Incometax( Appeals) directing the Assessing Officer to frame the assessment on substantive basis in the hands of the assessee, on the ground that Bharat Trust was a specific trust? 2. The relevant facts are that Assessing Officer for assessment year 19811982, finalised the assessment taking the status of the assessee as an individual and the income declared in the return was assessed protectively. The matter was carried in the Appeal and CIT (Appeals)held that Bharat Trust was a specific trust and the provisions of section 164 of the Act was not applicable. He therefore held that the assessment in the hands of assessee should be finalised on substantive basis. The Tribunal in the further appeal, confirmed the order of CIT(Appeals) against which, the above referred question has been referred to this Court. 3. When the matter is taken up for hearing, Mr.Soparkar, learned counsel appearing for the respondent Trust has declared that in Kar Vivad Samadhan Scheme, Bharat Trust has already settled the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f beneficiaries on the returned income on protective basis. 3. On appeal, first Appellate Authority found that appeals in the cases of main Trust came up before him for A.Y. 1981 - 82 for consideration and in his appellate order, he held that since the beneficiaries as well as their share in the main Trust were known and specified in the Trust Deed, the provisions of Section 164 were not applicable and accordingly, he directed the Assessing Officer to assess the income of the main Trust in the hands of the beneficiaries on substantive basis at an appropriate rate and as a consequence, the first Appellate Authority directed the Assessing Officer to assess the present beneficiaries on substantive basis. 4. Before the Tribunal, it was pointed out that the appeals in the cases of main Trust i.e. Bharat Trust and Navbharat Trust have since been decided by the Tribunal in their orders for A.Y. 1981-82 and the Tribunal came to the conclusion that all the beneficiaries of the said Trusts were known and their shares were determinate and the income of the Trust has to be computed and apportioned in terms of the provisions of Section 161 (1) of the Incometax Act, 1961 and their income c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 and passed an order that having regard to the order dated 30.07.2001 passed by another Division Bench of this Court in Tax Appeal Nos.188 to 228 of 2001, with which the subsequent Division Bench was not inclined to agree, the petitions were ordered to be listed before a larger Bench after obtaining appropriate orders of the Hon'ble Chief Justice. 8. Pursuant to the said order, Full Bench was constituted and vide its order dated 17.09.2003, the Full Bench took the view that the appropriate course appeared to be that the petitioners may approach the Tribunal by way of application for refusing and/or modifying the orders of the Tribunal, raising new contentions on the basis of the material which they could not earlier bring on the record of the Tribunal in all these matters. 9. In the meantime, each one of beneficiaries of the main Trust have moved an application before the Assessing Officer claiming refund of the amount paid and the said applications were allowed by the Assessing Officer. The Commissioner of Incometax took up the said proceedings under Section 263 (1) and vide his order dated 12.03.2003, the orders passed by the Assessing Officer under Sections 154 (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above view of the matter, it was ocntended on behalf of the respondent assessee that the issue is squarely covered by the earlier decision of this Court and hence, this Court should dispose of the present references by holding that since the income has already been taxed in the hands of the main Trust and taxes have also been paid by the main Trust, the income taxed in the hands of the beneficiaries originally on protective basis should be deleted and to that extent, the present references are to be allowed by holding that the Tribunal was not right in law and on facts in holding that share income of the assessee as a beneficiary from M/s. Bharat Trust and Navbharat Trust should be assessed on substantive basis. 13. As against the submission of the respondent assessee, it was contended on behalf of the revenue that simply because the main Trusts have settled their dispute under KVSS, it does not become automatically the income of the main Trust. The orders passed by the first Appellate Authority and the Tribunal directing to assess the income in the hands of the beneficiaries on substantive basis is just and proper. By taking advantage under KVSS and by paying the tax at a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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