TMI Blog2022 (6) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... le on pages 1 to 3 of the paper book. Thus, we are not convinced with the argument of the learned counsel for the assessee. Application of Maximum Marginal rate @ 30% - Whether the rate of an individual should be applied or the maximum marginal rate of tax in the manner as provided under the provisions of section 164? - Admittedly, the person has filed the return of income in the representative capacity in the manner as provided under clause (iv) of section 160 of the Act. To this proposition, there is no dispute. It is also not under challenge that the trust on hand is a discretionary trust meaning thereby the beneficiaries of the trust are not known. In other words the trust being public trust was formed to carry out the charitable activities as evident from the trust deed, placed on pages 9 to 15 of the paper book. It was also provided in the trust deed that ownership of all money and the properties of the trust shall be of the trust and no member/organization shall have right of ownership. Likewise, in the event of dissolution of the trust, all the property of the trust after meeting the liabilities would be transferred to some other trust carrying on similar activity whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the I T Act determined total income of Rs 82,360/- which is below taxable income but applied Maximum Marginal rate @ 30%and tax payable them on Rs 26,150/-. 4) That the trust has made entire fund of the trust in the Fixed deposit with Union bank of India as per Sec. 11(5) of the IT Act. 5) That the Income of the Trust is very small and it could not be possible to distribute income amongst the large people of the Gujarat Rohit Samaj. It is therefore prayed before Hon'ble ITAT bench A'bad that tax levied @30% . May kindly be deleted and allow relief of tax of Rs 26150/-. Your appellant craves liberty to add, alter, modify or withdraw any grounds before hearing in the appeal. 3. The only issue raised by the assessee is that the learned CIT(A) erred in confirming the order of the AO by applying the maximum marginal rate of tax on the income declared by it though the same was below the taxable limit. 4. The facts as emerging from the records available before us are that the assessee for the year under consideration has filed return of income declaring an income of Rs. 82,359/- under the head income from other sources. As per the assessee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed AR also contended that rate of tax as provided under section 164 of the Act as applicable to an individual should be considered. As such, it was the contention of the learned AR that the slab rate of tax should be applied on the income of the trust. 9. On the contrary the learned DR contended that the intimation generated under section 143(1) of the Act is not an assessment and therefore the benefit of the proviso to section 12 AA of the Act cannot be granted. The learned DR in support of his contention has relied on the judgment of Hon ble Gujarat High Court in the case of S.R. Koshti vs. CIT reported in 276 ITR 165. The learned DR vehemently supported the order of the authorities below. 10. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case, the assessee being a trust was registered in the year 1998 as Public Trust with Charity commissioner, Ahmedabad under Mumbai Public Trust Act 1950. The assessee has filed the application for the registration under section 12AA of the Act vide application dated 21st March 2016 which was approved by the learned CIT exemption by granting the registration under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file a revised return within the period of limitation. The revised return was filed within the period of limitation and was hence, valid. In those circumstances, the finding recorded by the Commissioner under section 263 that the revised return was non est in law, could not be sustained and was, accordingly, held to be bad in law. [Para 12] 10.1 In view of the above, we hold that the intimation generated under section 143(1) of the Act is not an assessment and therefore we hold that the benefit as provided under the 1st proviso to subsection 2 of section 12AA of the Act is unavailable to the assessee. 10.2 In addition to the above, we also note that the assessee while filing the return of income has not claimed the benefit of the provisions of section 11 of the Act which can be verified from the computation of income available on pages 1 to 3 of the paper book. Thus, we are not convinced with the argument of the learned counsel for the assessee. 11. The 2nd controversy arises for our adjudication whether the rate of an individual should be applied or the maximum marginal rate of tax in the manner as provided under the provisions of section 164 of the Act. Admittedly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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