Income Tax Appellate Tribunal - Chennai
Ito, Chennai vs M/S. Tamil Nadu Urban Development Fund, ... on 22 February, 2018
आयकर अपील
य अ धकरण, 'सी' यायपीठ, चे नई
IN THE INCOME TAX APPELLATE TRIBUNAL
'C' BENCH, CHENNAI
ी एन.आर.एस. गणेशन, या यक सद य एवं
ी ए. मोहन अलंकामणी, लेखा सद य केसम$
BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND
SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER
%व%वध या चका सं / M.P. Nos.246 & 247/Chny/2017
(in I.T.A. Nos.2316 & 2317/Mds/2016)
नधा&रण वष& / Assessment Years : 2008-09 & 2009-10
M/s Tamilnadu Urban
The Assistant Commissioner of Development Fund,
Income Tax, v. No.19, T.P. Scheme Road,
Non-Corporate Circle - 2, Raja Street Extension,
Chennai. R.A. Puram, Chennai-28
PAN : AAATT 0859 N
()ाथ&क/Petitioner) ()+यथ,/Respondent)
)ाथ&क क. ओर से /Petitioner by : Shri S. Nataraja, JCIT
)+यथ, क. ओर से/Respondent by : Smt. Pushya Seetharaman,
Sr. Advocate
सन
ु वाई क. तार
ख/Date of Hearing : 16.02.2018
घोषणा क. तार
ख/Date of Pronouncement : 22.02.2018
आदे श /O R D E R
PER N.R.S. GANESAN, JUDICIAL MEMBER:
The Revenue has filed the present Miscellaneous Petitions.
2. Shri S. Nataraja, the Ld. Departmental Representative, submitted that this Tribunal found that the trust is a revocable trust and income 2 M.P. Nos.246 & 247/Chny/17 derived by the assessee required to be taxed in the hands of the beneficiaries in accordance with provisions of Section 61 and 161(1) of the Income-tax Act, 1961 (in short 'the Act'). Referring to the copy of the trust deed available on record, more particularly Clause 29, the Ld. D.R. pointed out that the trust, as per the trust deed, is irrevocable trust, therefore, the observation made by the Tribunal that the trust is revocable one is contrary to trust deed itself, therefore, there is an error in the order of this Tribunal dated 23rd March, 2017.
3. The Ld. Departmental Representative further submitted that when the trust deed expressly stated that it is not a revocable one and the trust would come to an end only when all the contributors as a whole decide to put an end to it, the trust would continue, therefore, the finding recorded by this Tribunal that the trust is a revocable one is not a correct. This needs to be rectified.
4. On the contrary, Smt. Pushya Seetharaman, Ld. Sr. counsel, submitted that this Tribunal, after considering the trust deed and contributors agreement, found that the beneficiaries are identifiable, shares are determined by the contributors agreement and the contributors are free to call upon the trust to cancel any units held by them and return the value. Therefore, according to Ld. Sr. counsel, this Tribunal found that it is a revocable trust under Section 61 of the Act. When the Tribunal, after considering the trust deed and contributors 3 M.P. Nos.246 & 247/Chny/17 agreement came to a conclusion that it is a revocable trust in view of Section 61 of the Act, it cannot be said that the decision taken by the Tribunal is an error on the face of the record. This Tribunal has also placed its reliance on the decision of co-ordinate Bench of this Tribunal in DCIT v. India Advantage Fund-VII (2014) 36 ITR (Trib) 304.
5. We have considered the rival submissions on either side and perused the relevant material available on record. This Tribunal, after considering the trust deed, contributors agreement and the provisions of Section 61 and 161 of the Act, found that the beneficiaries of the trust are identifiable and shares are determined. It was also found that the contributors to the assessee-fund are free to call upon the trust to cancel any unit held by them and return the value. When this Tribunal examined the material available on record and statutory provisions and recorded a categorical finding that the trust is a revocable one, it cannot be said that there is an error in the order of this Tribunal.
6. We have carefully gone through the provisions of Section 254(2) of the Act. Section 254(2) of the Act enables the Tribunal to rectify an error which is prima facie on the record of the Tribunal. The claim now made by the Revenue is that the trust is a revocable one is not a prima facie error arising out of the order of this Tribunal. At the best, we may say that the order of this Tribunal was not correct. However, this Tribunal has no jurisdiction to review its own order. Under Section 254(2) of the 4 M.P. Nos.246 & 247/Chny/17 Act what can this Tribunal do is to rectify an error which is prima facie on record and not review of the order. The Revenue, in the guise of rectification, claims a review of the order before this Tribunal, which is not permissible under the scheme of the Income-tax Act. Therefore, this Tribunal do not find any merit in the Miscellaneous Petitions filed by the assessee.
7. In the result, both the Miscellaneous Petitions filed by the Revenue are dismissed.
Order pronounced court on 22nd February, 2018 at Chennai.
sd/- sd/-
(ए. मोहन अलंकामणी) (एन.आर.एस. गणेशन)
(A. Mohan Alankamony) (N.R.S. Ganesan)
लेखा सद य/Accountant Member या यक सद य/Judicial Member
चे नई/Chennai,
4दनांक/Dated, the 22nd February, 2018.
Kri.
आदे श क. ) त5ल%प अ6े%षत/Copy to:
1. )ाथ&क/Petitioner
2. )+यथ,/Respondent
3. आयकर आय7
ु त (अपील)/CIT(A)
4. आयकर आयु7त/CIT
5. %वभागीय ) त न ध/DR
6. गाड& फाईल/GF.