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Income Tax Appellate Tribunal, B/“SMC” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal is filed by the Revenue, aggrieved by the common order of the Learned Commissioner of Income Tax(A)-2, Chennai dated 29.06.2017 pertaining to assessment years 2007-08 & 2008-09. Since the assessee is common in these two appeals, these appeals are clubbed together, heard together, disposed off by this common order for the sake of convenience.
The Revenue has raised the following common grounds in its appeals for adjudication.
1. The order of the learned CIT(A) is contrary to law, facts and circumstances of the case.
2. The learned CIT(A) erred in treating the Trust as valid, without appreciating the fact that the meeting of the Board of Trustees held on 5.6.2003, without the main Trustee had extended the trust period for another 20 years, which is violation of the provisions of section 47 and 48 of the Indian Trust Act, and such an extension in variance to the original trust deed is invalid in law. 3. The learned CIT(A) erred in holding the “Trust” as “Valid”, without appreciating the fact that there was variation in share allocation table , in as much as the same reflects 14 beneficiaries, whereas the Trust deed names only 10 beneficiaries. 4. The learned CIT(A) erred in holding the “Trust” as “Valid”, thereby allowing the benefits of section 161 of the IT Act, whereas for the shortcomings in extension of the Trust and share allocation table in respect of beneficiaries, the entity ought to have been subjected to tax at maximum marginal rate U/s. 167 of the IT Act, as applicable to AOP.
The brief facts of the case are that the assessee was a Private Trust registered on 28.06.1983 by one Shri K.Santhanam (author of the Trust). The author of the trust transferred a sum of 10,000/- in favour of two trustees who were (a) Shri Murasoli Maran (b) Smt.
Mallika Maran, to hold offices for their life time or till expiration of trust. The Tust Deed specified 10 beneficiaries and their shares. In clause 15 of the Trust deed, the duration of the trust has been determined as being a period of 20 years from the date of execution of the deed i.e. till 28.06.2003, but may be extended for a like time t the discretion of the Trustees. The Trustees are also empowered to determine the Trust within a period of 20 years. The ld. Assessing Officer passed assessment order u/s.147 r.w.s.143(3) of the Act for assessment year 2007-08 on 28.3.2016 & 2008-09 on 28.03.2016 and held that the Trust had become invalid on account of certain deviations from/violation of original Trust deed, hence benefit of sec.161 claim was disallowed. Aggrieved by the order of ld. Assessing Officer, the assessee carried the appeal before the Ld.CIT(A). On appeal, Ld.CIT(A) treating the Trust as valid. Against the order of Ld.CIT(A), now the Revenue is in appeal before Tribunal.
Before Tribunal, the ld.D.R submitted that the resolution of Board of Trustees of this Trust, which was passed on 05.06.2003 is invalid as the main trustee was not attending the said meeting.
Further, ld.D.R submitted that the findings of the Tribunal in earlier assessment order for assessment years 2005-06 & 2006-07 in & 2664/Mds./2016 & C.O Nos.163 & 164/Mds./2016 vide order dated 31.01.2017 was delivered on the premises that there are three Trustees, out of which two trustees are attending the meeting.
Therefore, the resolution is validly passed by the majority of the Trustees, even if Shri Murasoli Maran was not present in the Trust meeting, which was held on 05.06.2003.
On the other hand, ld.A.R submitted that this issue is squarely covered by the earlier order of Tribunal cited supra.
I have heard both the parties and perused the material on record. Admittedly, on earlier occasion the Tribunal in the earlier assessment years 2005-06 & 2006-07 given a finding that there are three trustees, out of which two trustees attended the meeting, therefore, the resolution validly passed by the majority of the Trustees, even if Shri Murasoli Maran was not present in the Trust meeting. However, in the present case, I have gone through the resolution passed on 05.06.2003, which is reproduced herein below:-
“M.M.F. TRUST 93. Kodambakkarn High Road Chennai 600 034. Date MINUTES MEETING OF THE BOARI) OF TRUSTEES OF MMF TRUST (MARAN FAMILY TRUST) HELD ON THURSDAY THE 5TH JUNE 2003.
The Meeting was attended by Mrs. Mallika Maran, Trustee and Mr. Kalanith Maran, representing Mr. Murasoli Maran, another Trustee who could not attend the meeting as he was seriously indisposed. Mrs. Mallika Maran, Trustee took the Chair and presided the Meeting. The meeting took note of clause 15 of the Trust Deed dated 28t day of June I983 which provides that the duration of the Trust shall be for a period of 20 years from the date o execution of the deed i.e., till 27th day of June 2003. The meeting after discussion unanimously decided to extend the duration of the Trust in accordance with said clause 15th by a term of 20 years from the date on which the initial term expires. Accordingly the duration of the Trust was extended. The meeting thanked the Chair and concluded as there was no other business to discuss. Signed this day and date referred to above for and on behalf of M/s MMF TRUST’. - 1. Mrs. Mallika Maran Sd/- Trustee & Chairman of this meeting 2. Mr. Kalanithimaran Sd/- Representing Mr. Murasoli Maran, Trustee.” As seen from the above, the resolution was signed by Mrs. Mallika Maran, who is the Trustee & Chairman of the meeting, and Mr.Kalanithi Maran representing Mr.Murasoli Maran, Trustee. It is also admitted fact that Mr.Kalanithi Maran was not a Trustee. On the other hand, he is the beneficiary as observed from the Memorandum of Family Settlement dated 10.04.1995.
6.1 The Bench has put a specific query to the ld.A.R when Mr.Kalanithi Maran becomes the Trustee of the Trust. Ld.A.R submitted that beneficiary could be the Trustee and he could have dual capacity, one as a Trustee and other as a beneficiary. Further, ld.A.R drew my attention that on earlier occasion for assessment years 2005-06 & 2006-07, the Department came in appeals before this Tribunal in & 2664/Mds./2016 & C.O Nos.163 & 164/Mds./2016 vide order dated 31.01.2017 considered the same resolution and observed as under:-
“6. We have considered the rival submissions on either side and perused the relevant material available on record. The Assessing Officer found that there are three Trustees in the assessee-trust, out of which one was indisposed and admitted in the hospital for treatment. The remaining two Trustees attended the meeting held on 05.06.2003 and passed the resolution for extending the trust for another 20 years. This resolution was found to be not valid by the Assessing Officer since one of the Trustees, namely, Shri Murasoli Maran could not attend the meeting on 05.06.2003. It is not in dispute that Shri Murasoli Maran was admitted in the hospital and he was taking treatment. Totally there were three Trustees, out of which two trustees attended the meeting, therefore, the resolution was validly passed by the majority of Trustees. Even if Shri Murasoli Maran was present at the meeting held on 05.06.2003 and objected to passing of the resolution, this Tribunal is of the considered opinion that the decision taken by the majority of Trustees has to be taken as valid decision for extending the Trust for another 20 years. Therefore, absence of Shri Murasoli Maran in the meeting on 05.06.2003 would not be of any consequence at all. Moreover, at no point of time either said Shri Murasoli Maran or his legal heir objected to the resolution passed on 05.06.2003 extending the trust period for another 20 years. In those circumstances, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly found that the assessee-trust is eligible to claim benefit available under Section 161 of the Act. Therefore, the order of the Assessing Officer to assess the income at maximum marginal rate under Section 167 of the Act is not justified. In view of the above discussion, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.” In view of the above decision of the Tribunal, I am of the opinion that the decision is having binding effect on this assessment year also and it has to be followed in true letter and spirit. Further, the jurisdictional High Court in the case of CIT Vs. L. G. RAMAMURTHI in [1977] 110 ITR 453 (Mad) wherein held that:-
“in the absence of any fresh material, the Tribunal was not justified in coming to an entirely different and contrary conclusion on the same set of facts.”
Further, once again, the jurisdictional High Court in the case of Lakshmi Vilas Bank Ltd. Vs. CIT in [2006] 284 ITR 93 (Mad) wherein held that the Tribunal having decided the case in earlier years in favour of assessee on identical facts, it is not proper for the Tribunal to take a different view for the subsequent year on the same set of facts.
6.2 In view of the above, I am inclined to decide the issue in favour of assessee and against the Department, since the issue is similar to that one considered by the Tribunal in the earlier assessment years i.e. 2005-06 & 2006-07.
In the result, both the appeals of Revenue are allowed.
Order pronounced on 20.12.2017.