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Income Tax Appellate Tribunal, ‘C’ BENCH: CHENNAI
Before: SHRI ABRAHAM P.GEORGE & SHRI GEORGE MATHAN
[PAN: AABTT 5582 H] (अपीलाथ'/Appellant) (()यथ'/Respondent) Cross Objection Nos.1 & 2/Chny/2018 $नधा!रण वष! /Assessment Years: 2009-10 & 2010-11 Vs. M/s.TVS Shriram Growth Fund, The Income Tax Officer, 249A, Ambujammal Street, Off: TTK Non-Corporate Ward-3(5), Road, Near Alwarpet Post Office, 121, M.G.Road, Alwarpet, Chennai-600 018 Nungambakkam, Chennai-600 034. [PAN: AABTT 5582 H] (अपीलाथ'/Appellant) (()यथ'/Respondent) : Department by Mr.Sailendra Mamidi, CIT Assessee by : Mr.Saroj Kumar Parida, Adv. : सुनवाई क+ तार"ख/Date of Hearing 28.02.2018 : घोषणा क+ तार"ख /Date of Pronouncement 28.02.2018 आदेश / O R D E R PER BENCH: is an appeal filed by the Revenue against the Order of the Commissioner of Income Tax (Appeals)-4, Chennai, in ITA Nos.2443 & 2444/Chny/2017 CO Nos.1 & 2/Chny/2018 :- 2 -:
ITA No.66/2016-17/AY 2009-10/CIT(A)-4 dated 11.07.2017 for the AY 2009-10 against the cancellation of penalty levied u/s.271(1)(c) and is an appeal filed by the Revenue against the Order of the Commissioner of Income Tax (Appeals)-4, Chennai, in ITA No.67/2016-17/AY 2010-11/CIT(A)-4 dated 11.07.2017 for the AY 2010- 11 against the cancellation of penalty levied u/s.271(1)(c) and CO No.1/Chny/2018 filed by the assessee in ITA No.2443/Chny/2017 for the AY 2009-10 & CO No.2/Chny/2018 filed by the assessee in ITA No.2444/Chny/2017 for the AY 2010-11.
Shri Sailendra Mamidi, CIT., represented on behalf of the Revenue and Shri Saroj Kumar Parida, Adv., represented on behalf of the assessee.
As both the appeals are related to the same assessee and involved the same issues, the same along with Cross-Objections are disposed off by this common order.
It was submitted by the Ld.AR at the time of hearing that the quantum appeals in the case of the assessee for the AYs 2009-10 & 2010- 11 had been disposed off by the Co-ordinate Bench of this Tribunal in & 1401/Mds/2016 dated 07.06.2017, wherein, in Para No.6.7 at Page Nos.28 & 29 of the Order, the Co-ordinate Bench of this Tribunal has held as follows: & 2444/Chny/2017 CO Nos.1 & 2/Chny/2018 :- 3 -:
6.7 In the instant case, the assessee has created a trust which was registered and the beneficiaries have been identified by the contribution agreement(PPM) and their shares are also ascertainable with respect to contributions and the units. The Hon’ble High court considered the issue regarding identification of beneficiaries at the time of formation of the Trust and expressed view that even after execution of the trust deed if the beneficiaries are identifiable and their shares are ascertainable it is sufficient compliance to hold the trust as determinate Trust. In the assessee’s case the beneficiaries are identifiable with PPM and their shares are ascertainable as discussed earlier in this order. The facts of the case are similar to that of “India advantage Fund” Supra and the decision rendered by the Hon’ble ITAT Bangalore squarely applies in this case. Respectfully following the decision of the Co- ordinate Bench of Bangalore and Hon’ble Karnataka High court Supra we hold that the assessee’s Trust is a determinate trust and the appeal of the assessee is on this issue is allowed.
It was a submission that as the issue has been held in favour of the assessee and as the Ld.CIT(A) deleted the penalty on account of the findings of the Tribunal in the assessee’s own case for the AYs 2009-10 & 2010-11, the same was liable to be upheld.
In reply, the Ld.DR vehemently supported the order of the AO. It was a submission that the issue of the taxability of the correct interest income, the issue had been restored to the AO by the Tribunal.
We have considered the rival submissions.
As it is noticed that the penalty has been levied on the assessee on account of the conclusion of the AO that the trust deed does not have the name of the investors and does not specified the beneficial interest income, Sec.164 would come into play. Further, the AO has levied the penalty on account of the consequential taxation of the interest income from the Fixed Deposits. A perusal of the order of the Tribunal clearly shows that in the case of the assessee, the Tribunal has given a & 2444/Chny/2017 CO Nos.1 & 2/Chny/2018 :- 4 -: categorical finding that the assessee is a determinate trust. Further, the Tribunal has restored the issue in respect of the correct income that is liable to be taxed to the file of the AO. This being so, it is noticed that the issues on which the penalty has been levied, no more survive.
Consequently, we find no error in the order of the Ld.CIT(A) which calls for any interference. Consequently, the appeals filed by the Revenue are dismissed.
It was submitted by the Ld.AR that the Cross-Objections filed by the assessee are in support of the order of the Ld.CIT(A). As we have already upheld the order of the Ld.CIT(A), the Cross-Objections filed by the assessee no more survive and consequently, the same are disposed off as infructuous.
In the result, the appeals filed by the Revenue in & 2444/Chny/2017 and Cross-Objections filed by the assessee in CO Nos.1 & 2/Chny/2018 are dismissed.
Order pronounced in the Open Court on February 28, 2018, at Chennai. (अ"ाहम पी. जॉज") (जॉज! माथन) (GEORGE MATHAN) (ABRAHAM P.GEORGE) "या$यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER