TMI Blog1998 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case and on a correct interpretation of Expln. (1) below s. 164(3) of the IT Act, 1961, the Tribunal was justified in law in holding that the 'would be wife' of the minor satisfied the above condition and thereby directing the AO to tax in the status of AOP at the rate applicable to AOP and not at the maximum marginal rate?" 2. The assessee is a trust which filed a return with the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretionary one and calls for invoking s. 164(1) of the IT Act, 1961. Therefore, the assessee has to pay tax at the maximum rate as representative assessee as provided under the said section of the Act and the income-tax assessee has to pay tax accordingly. 4. In appeal before the AAC he has taken a view that in the present case cl. 5 of the deed of trust expressly states the share of the sole b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (sic). Therefore, the Tribunal directed assessment on the assessee in the status of AOP at the rate applicable to AOP. 6. Learned counsel for the Revenue brought to our notice the latest decision of the Court in the case of CIT vs. Atreya Trust (1992) 107 CTR (Cal) 185 : (1992) 193 ITR 716 (Cal) : TC 44R.564, IT Ref. No. 26 of 1987, wherein this Court held that the provisions of s. 164 were m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rust was for the benefit of individuals who are determinate and known, and rendering s. 164(1) inapplicable. 7. Learned counsel for the assessee submits that though the issue is covered against the assessee the first proviso to s. 164(1) has not been considered by the Tribunal. Therefore, for that purpose the matter can be remitted back to the Tribunal. Heard counsel for the parties. 8. We p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, we cannot go into that question, which has not been referred to us. The question before us is whether the trust is a discretionary trust and if discretionary, what should be the rate applicable to the assessee-trust. The answer will be in such a case the tax rate will be the maximum marginal rate. 10. In the result, we answer the question referred in the negative, i.e., in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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