9911796707
TMI Blog1989 (1) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... , the powers of the Trustees, the names of the beneficiaries, etc. etc. The third proviso to cl. 1(A) of the Affidavit reads as under: "Also provided further that the Trustees shall have full and absolute authority by passing a Resolution of the Board of Trustees at any time to determine one and for all the individual shares of the income of the beneficiaries or to any one or more of them to the exclusion of others or other of them, for their, his or her absolute use and benefit with intent to pay the income of the Trust Fund including the Surplus Reserve Fund in such determinate and known shares and in such an event all subsequent distribution of the income of the Trust Fund including the surplus reserve Fund shall be made in accordance with such determinate and known shares allotted to the beneficiaries or to any one or more of them as the case may be AND the terms of the said Resolution shall be deemed to form part of the Trust from the date of the said Resolution and the Trustees shall not have any power thereafter to alter and/or vary the aforesaid resolution." 5. Exercising the power given under the aforesaid proviso the Board of Trustees passed the following Resolution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100 % 7. On the aforesaid facts the assessee filed its return of Income for the year under appeal computing the taxable income at 'Nil' in the following manner: "Statement of Total Income . Rs. Business Income : . . Net profits from proprietory business of M/s Pipe Sales Corporation Bombay . 52,384 Other Sources: . . Interest on S.B. A/c., with Canara Bank . 33 . . 52,417 Less: Deductions: . . Professional Fees deductable under s. 80VV . 350 . Total income 52,067 Less: Prior Charges of beneficiaries: . . Miss Sonal Bipin Kothari 50 % 26,034 . Master Amit Bipin Kothari 50 % 25,033 52,067 . Taxable Income Rs. Nil Notes : 1. Tax on Rs. Nil Rs. Nil Less: Advance-tax paid Rs. Nil 140-A Tax payable Rs. Nil 2. The Trust was settled by Smt. Pushpa Prakash Shah on 25th May, 1979 by an oral disposition. Under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee preferred an appeal before the AAC. In para 1 of his order under appeal the AAC has narrated as to how the ITO had concluded that the shares of the beneficiaries were not definite and ascertainable and, therefore, he had treated the Trust as discretionary trust. In para 2 of his order under appeal the AAC has recorded the facts of the case as narrated by the assessee. In the last paragraph of his order under appeal the AAC allowed the appeal filed by the assessee in the following manner: "I have considered the observations of the ITO and the submissions of the appellant. I am of the opinion that the trust should not be treated as a discretionary trust since the shares of beneficiaries are determinate as per the resolution passed. In result the appeal is allowed." 10. The Revenue, being aggrieved by the aforesaid order of the AAC has come up in appeal before the Tribunal. The learned representative for the Department vehemently argued that since the case was covered by the provisions of s. 164A of the Act, which is brought on statute from 1st April, 1981 and reads as under: "164A. Charge of tax in case of oral trust. Where a trustee receives or is entitled to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith which we are concerned in the present appeal. He, therefore, strongly urged that the order of the AAC should be reversed. 11. The learned Counsel for the assessee, on the other hand, supported the order of the AAC. According to him, the provisions of s. 164A of the Act would not be applicable in the present case, as in the present case it is difficult to hold that the Trust was created under an oral trust, inasmuch as, the assessee had furnished particulars to the ITO as contemplated under Expln. 1 to s. 160 of the Act. Similar arguments were also advanced by him in respect of the Expln. 1 to s. 164(3) of the Act. He, therefore, urged that we should uphold the order of the AAC under appeal. 12. The learned representative for the Department, in his reply, submitted that even assuming for the sake of argument that we have to treat the Affidavits/Resolution as an instrument in writing for the purposes of determining whether the income of the assessee has to be taxed at the maximum marginal rate, we cannot ignore the fact that originally the assessee-trust was a discretionary trust. This fact could be clearly discernible from the documents already brought on record. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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