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13. The next point to consider is the alternative hypothesis under which, under Section 160(1)(iv) a representative assessee is defined to mean, in respect of the income which a trustee appointed under a trust declared by a duly 4 (1991) 188 ITR 224 (Bom).

5 (2003) 262 ITR 520 (Bom).

PNP 9/14 WPL523-6.3 executed instrument in writing receives or is entitled to receive on behalf or for the benefit of any person, such trustee. Section 161(1) provides that every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of the beneficiary and shall be liable to assessment in his own name in respect of that income; but any such assessment shall be deemed to be made upon him in his representative capacity only and the tax shall be levied upon and recovered from him "in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him". The contention of the Petitioner is that under Section 161(1) tax is to be levied on the representative assessee in the like manner and to the same extent as would be leviable upon the person represented by him and since the income of the Petitioner is exempt under Section 10(23D), no tax can be levied or recovered under Section 161(1). The contention of the Revenue, however, is that sub section (1A) of Section 161 has a non obstante provision under which, where any income in respect of which a person mentioned in Section 160(1)(iv) is liable as a representative assessee consists of or includes profits and gains of business, tax shall be charged on the whole of the income in respect of which such person is so liable at the maximum marginal rate. The issue which would fall for determination is as to whether Section 161(1A) lays down only the rate of tax without affecting the basic principle underlying Section 161(1) viz. that tax would be levied upon and recovered from the representative assessee in the like manner and to the same extent as would be leviable upon the person represented by him or whether the non-obstante provision would over ride sub Section 1 in its entirety. We have adverted to the nature of the controversy in the present case in order to elucidate PNP 10/14 WPL523-6.3 that the questions on which there is a controversy, which is still to be resolved, involves serious triable issues. The contention of the Petitioner, prima facie, cannot be rejected out of hand particularly having regard to the fact that the earlier judgment of this Court for Assessment Year 2009-10 also took the same position. Moreover, the issue as to whether the income in question is business income is a matter which would have to be determined. Finally, on this aspect of the matter, it may be necessary also to note the submission of the Petitioner with reference to the provisions of Section 61 which stipulate that all income arising to any person by virtue of a revocable transfer of assets shall be chargeable to income.