TMI Blog2024 (4) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of section for a trust. Thus, when the specific provisions of charging tax, the general provisions cannot be made applicable in this case. The ld. AR of the assessee also submitted that similar issue has been dealt with by the Revenue for assessment years 2015-16, 2016-17 2018-19 as per provisions of Section 164(2) of the Act. As decided in SHRI DIGAMBAR JAIN MANDIR TRUST CHARANWAS VERSUS AO, MAKRANA, ITO, WARD-1, MAKRANA [ 2024 (4) TMI 661 - ITAT JODHPUR] assessee trust shall be charged to tax u/s. 164(2) at the rate as applicable to Individual and AOP - decision of the ld. CIT(A) to charge the assessee u/s. 164(1) is not correct it should be charged based on the specific provision of the Act u/s. 164(2) of the Act and the tax rate as applicable to that 164(2) will apply to the rate of the AOP/Individual and the initial exemption is also available to such assessee. Thus we direct the ld. Assessing Officer to charge the assessee as per provisions of Section 164(2). Appeal of the assessee is allowed. - Dr. S. Seethalakshmi, Judicial Member And Shri Rathod Kamlesh Jayantbhai, Accountant Member For the Appellant : Sh. Rajendra Jain, Adv. And Smt. Raksha Birla, C.A. For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in no members which total income exceeds the maximum amount which is not chargeable to tax whereas Sh. Manish Kumar Khemka is a member of the above institution having PAN AEQPK3109J and total income of Sh. Manish Kumar Khemika is Rs. 8,71,590/- (i.e. exceeds the maximum amount which is not chargeable to tax). The facts of the case were carefully gone through and it is perused that there is no mistakes apparent from the record. In view of the above, the rectification application filed by the assessee for A.Y. 2017-18 is hereby rejected. Total income remains the same as per order u/s. 143(1) of the Act dated 23.04.2018 at Rs. 3,98,410/-. 4. Aggrieved from the order of the assessing officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised by the assessee the relevant finding of the ld. CIT(A) is reiterated here in below:- 5. Observation and decision: In the only ground of appeal the appellant contested the order of the AO u/s 154 in which the request for levy of tax at the normal slab rates on the total income of the appellant was rejected. In the intimation u/s 143(1) CPC has charged the tax at the maximum marginal rate of 30% on the total incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; and 'a trustee appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise [including any wakf deed which is valid under the Mussalman Wakf Validating Act, 1913 (6 of 1913)' respectively. In the return of income under the heading Partner's or Member's or Trust Information- the appellant had left Column No.F, which is required to be filled in in case of persons referred to in section 160(1) (iii) or (iv), were left completely blank. Therefore, the arguments that filing of return in Form 5 in the status of AOP was a Technical Error and also that the status of assessee has always been ARTIFICIAL JURIDICAL PERSON in terms of section 164(1) of Act tax should have been levied by treating it as INDIVIDUAL not at Maximum Marginal Rate, can at best be termed as afterthoughts, which occurred to the appellant after the tax was charged at the maximum marginal rate. The case of CIT v/s Kamalini Khatan (supra) relied on by the appellant does not apply, as it is clearly distinguishable on facts. 3. Section 154 of the Act has limited scope of rectifying mistakes which are apparent from record. Law is well settled on the point that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 2 above. The ld. AR of the assessee also filed a detailed paper book in support of the contentions raised. The index of the document submitted by the ld. AR of the assessee are as under:- S.No. Particulars Page No. 01. Copy of order u/s 143(1) for A.Y. 2015-16 and 2016-17 in which the CPC had accepted the declared income. 1-10 02. Copy of order u/s 143(1) r.w.s. 154 for A.Y. 2018-19 in which the CPC had rectified the same mistake and accepted the declared income. 11-15 6. In this case the issue raised by the assessee that the trust has not issued any exemption u/s 12A of the Act. Though the assessee s income can be charged to tax at maximum marginal rate or as per the normal provisions of the Income Tax Act. 7. Per contra, the ld. DR relied on the orders of the ld. CIT(A) at page in para 5.1. 8. We have heard both the parties and perused the materials available on record. On going through the trust deed it is apparent that there is no share of beneficiary whether no one or unknown as the assessee trust is so charging the assessee as per provisions of Section 164(1) is incorrect and the relevant provisions of section 164(2) of the Act which is specific charging of section for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of section 13, tax shall be charged on the relevant income or part of relevant income at the maximum marginal rate. So the Maximum Marginal Rate (MMR) is applicable if the clause (c) or clause (d) of sub-section (1) of section 13. Thus, 13(1)(c) deals where the money spent for the related party and 13(1)(d) deals religious trust or institution. The ld. AR of the assessee submitted that the assessee subsequently already registered u/s. 12A with effect from 22.03.2022 and thus it does not come under the provision of section 13(1)(c) and (d) of the Act and therefore, based on that set of facts the assessee trust shall be charged to tax u/s. 164(2) at the rate as applicable to Individual and AOP. The term individual / person include as per section 2(31) and the same is reads as; (31) person includes (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridical person, not falling within any of the preceding subclauses. Explanation. For the purposes of this clause, an association of persons or a body of individuals or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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