9911796707
TMI Blog2025 (1) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Commissioner of Income Tax (Appeals) has erred in not providing appropriate opportunity of being heard to the appellant for explaining the reason for delay in filing of appeal and dismissed the appeal which is against of law and principle of natural justice. 3. On the facts and in the circumstances of the case and in law the Learned CIT(A) has erred in confirming to action of the AO CPC who considered the Status of appellant as charitable trust instead of Individual/AOP. 4. On the facts and in the circumstances of the case and in law the Learned CIT(A) has erred in confirming the action of learned AO CPC who wrongly calculated to the tax liability in the intimation u/s 143(1) of the assessee trust by confirming to tax at Maximum Marginal rate instead of Normal Rate because appellant trust is a Private Discretionary trust and will hold same status as the beneficiaries/individual. 5. On the facts and in the circumstances of the case and in law the Learned CIT(A) has erred in confirming the action of learned AO CPC who wrongly assessed to tax Rs. 1,12190/- just ignoring to the fact that appellant trust is Private discretionary trust who hold the status of Individual and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Circular No. 6/2012 DT. 3rdAug. 2012 reported in 346 ITR(SF) 96 in which CBDT has directed that Private discretion Trust is assessable as an Individual hence Assessee is submitted its Return in ITR 5from last several years and Department are also accepting to the returned income Thus action of the AO regarding applying to the Tax calculation on MMR is against of above CBDT Circular. Therefore kindly be considered to trust correctly filed its ITR 5 and be also calculate tax at normal rate u/s 164(1) of the Act due to beneficiary identifiable and their shares are ascertainable as on date of Trust Deed as well as beneficiary of trust is also not having any below taxable non business income. 4. Now applicant also request for kindly directing to calculate the tax at Normal Rate in place of MMR as wrongly calculated on the plea that assessee filed its Income Tax Return in ITR 5 because other Form i.e. ITR 7 is prescribed for Chantable and Religious Trust which is Registered u/s 12AA and 80G of the Income Tax Act, while Appellant Trust is not a Charitable and Religious Trust and also not Registered u/s12AA and 80G of the Income Tax Act but a Private Family Trust which is not liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted before ld. CIT(A) praying for condonation of delay as under : "1. That I am the trustee of Aastitva Jain Family trust since inceptions of this trust and look after maintenance and other care of beneficiary Aastitva. Jain. This trust was created from the last will of Smt. Kusum Bai for the benefit of baby Aastitva Jain. 2. That said trust is not doing any business since inception except made deposits with known party on interest. Thus only income from interest since inception to as on date 3. That trust is having only one beneficiary who is not having any taxable income during the year 2014-15 as well as in subsequent year. 4. That I just received notice for recovery of tax from department hence I surprised after looking to the said demand notice because demand is raised of Rs. 112190/- after charging tax at Maximum Marginal rate instead of normal rate of tax even no business income of the trust as well as beneficiary was having below taxable income. 5. That on receiving of recovery notice, I just contacted to our tax consultant who login on the Portal and found that tax has been charged at MMR instead of normal rate of tax and advised for filing of appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(Appeals) did not proceeded to adjudicate the issues arising in the appeal on merits. 5. Assessee being aggrieved has filed second appeal with ITAT, and the ld. Counsel for the assessee submitted that the assessee is a Private Discretionary Trust and it is created by Will of Smt. Kusum Bai exclusively for the benefit of relatives. This is the only trust created by Smt. Kusum Bai and the shares of beneficiaries are determinative and hence, normal rate of tax shall be applicable keeping in view the provisions of section 164(1) of the Act, but the CPC applied MMR and raised demand against the assessee. It was submitted that there was delay of 2176 days in filing appeal before the ld. CIT(Appeals) beyond the time prescribed u/s 249(2), as the assessee was not having knowledge of the intimation/order of the CPC dated 19.10.2017 raising demand against the assessee by applying Maximum Marginal Rate(MMR) instead of normal rate of taxation. The ld. Counsel for the assessee stated before the Bench that it is only when the notice of recovery of demand was received, immediately steps were taken to file appeal. It was submitted that if period of limitation is computed from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(Appeals). The income tax return filed by the assessee was processed u/s. 143(1) by the CPC and the intimation was available on e-portal of income tax department. The assessee has also e-filed the return of income through e-portal and the assessee had to be vigilant in verifying whether any processing is done or demand has been raised by the CPC which stood uploaded on IT e-portal. 5.3 Ld. Counsel for the assessee prayed that the matter can be set aside back to the file of ld. CIT(Appeals) for deciding the appeal on merits. 6. I have considered rival contentions and perused the material on record. I have observed that the assessee has e-filed his return of income belatedly on 18.02.2017 u/s. 139(4) vide e-filing acknowledgement No. 626547700180217. Said return of income was processed by CPC, and intimation u/s. 143(1) of the Act dated 19.10.2017 was issued by CPC. The returned income of the assessee of Rs. 2,41,000/- was accepted. Further, income-tax demand of Rs. 74,469/- was raised against the assessee by CPC. Further, demand for interest thereon u/s. 234A, 234B and 234C aggregating to Rs. 37,721/- was raised by CPC against the assessee. Thus, in aggregate, total de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of notice, summons, requisitions, order and other communications. I direct the ld. CIT(Appeals) to make enquiry as to the manner in which the service was effected by the Revenue of the Intimation u/s. 143(1) of the Act on the assessee, and to arrive at the finding/conclusion whether service of intimation u/s 143(1) effected by CPC was in compliance to section 282 of the 1961 Act read with Rule 127 of the 1962 Rules. At this point of time, it will be relevant to refer to the judgment and order of Hon'ble Punjab & Haryana High Court in the case of Munjal BCU Centre of Innovation and Enterpreneurship, Ludhiana v. CIT(E), Chandigarh (2024) Live Law (PH)106(Case No. CWP-21028-2023(O&M), in which Hon'ble Punjab and Haryana High Court has held that merely uploading of the communication(notice) in the Income Tax department e-portal is not sufficient mode of communication keeping in view principles of natural justice which are inherent in income tax proceedings as also keeping in view provisions of Section 282 of the 1961 Act and Rule 127 of the 1962 Rules. When technicalities are pitted against advancement of substantial justice, then the court will lean towards advancement of justice. R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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