2004 (1) TMI 49

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....e considering it as having determinate shares?" We have heard Mr. M.R. Bhatt, learned standing counsel for the Revenue. Though the notice is unserved on the respondent-assessee, we are inclined to proceed with the hearing of this reference in view of the fact that the question referred for our opinion is required to be answered in favour of the assessee and against the Revenue. The assessee is an association of persons. The assessee was sought to be charged tax at the maximum marginal rate under section 167A of the Income-tax Act, 1961 ("the Act" for short). The contention of the assessee was that the shares of the beneficiaries and/or the members were determinate and known and, therefore, the provisions of section 167A of the Act wer....

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....members are determinate. It was on this basis that the Tribunal held that the provisions of section 167A of the Act were not applicable. The Tribunal has further held that it was an admitted fact that no new member was admitted after the association of persons was formed on April 10,1981, and was dissolved on February 22,1985, and that throughout the existence of the association of persons, the same members, whose names were mentioned in the constitution, continued. Consequently, the specific and determinate shares of the members did not undergo any change. In view of the aforesaid findings of fact given by the Tribunal which have not been challenged, in our view, the Tribunal rightly held that the clauses contained in the trust deed ena....

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....egate of- (i) the amount of income-tax calculated on the aforesaid part of the total income, at the maximum marginal rate; and (ii) the amount of income-tax with which it would have been chargeable had the remaining part of the total income been its total income. Explanation. - For the purposes of this section,- (a) 'maximum marginal rate' shall have the meaning assigned to it in Explanation 2 below sub-section (3) of section 164; (b) the individual shares of the members of an association of persons in the income of such association shall be deemed to be indeterminate or unknown if such shares are indeterminate or unknown on the date of formation of such association or at any time thereafter." For the applicability of the ....