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2013 (12) TMI 1111 - ITAT MUMBAIApplicability of section 161(1A) - taxability of income in the hands of beneficiary – Revision u/s 263 by CIT - Whether the assessee is a Trustee (or representative- assessee) u/s. 161(1) - Held that:- While the A.O. considers it to be a AOP, the assessee claims that of an individual, with the ld. CIT states of being not a valid trust, holds the asset in its own right (refer paras 2.2(i) and 2.3( c) of this order). In our view, this aspect would stand to be considered only after a clear understanding of the transaction. Further, the MF being itself, as we understand, a Trust, could it possibly be a beneficiary of a Trust (inasmuch as it is only the beneficiary which in law is the assessee, being represented by a trustee), for which its terms as well as the permissible avenues, including the mode and manner of making investments by it, would also be relevant. The question of application of sections 61 and 63 also does not arise. It is only where through the artifice of an arrangement the income is shifted to other than the beneficial owner that the said provisions would come into play. Following Malabar Industrial Co. Ltd [2000 (2) TMI 10 - SUPREME Court] - Non application of mind is a matter of fact, and inferential one, which has to be inferred on the basis of the material on record, including the order considered as passed without application of mind, and the facts and circumstances of the case - Following Sunbeam Auto Ltd [2009 (9) TMI 633 - Delhi High Court] - There has been no application of mind in the matter by the A.O. The income is taxable in the hands of assessee and not in the hands of beneficiary - Revision u/s 263 upheld – Decided in favor of Revenue.
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