1998 (3) TMI 123

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....d for our opinion: "Whether, on the facts and in the circumstances of the case and on a correct interpretation of Expln. (1) below s. 164(3) of the IT Act, 1961, the Tribunal was justified in law in holding that the 'would be wife' of the minor satisfied the above condition and thereby directing the AO to tax in the status of AOP at the rate applicable to AOP and not at the maximum marginal rat....

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....not be determined at any length of time. This makes the trust a discretionary one and calls for invoking s. 164(1) of the IT Act, 1961. Therefore, the assessee has to pay tax at the maximum rate as representative assessee as provided under the said section of the Act and the income-tax assessee has to pay tax accordingly. 4. In appeal before the AAC he has taken a view that in the present case ....

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....e extent of share in the trust property is also certain and adequate (sic). Therefore, the Tribunal directed assessment on the assessee in the status of AOP at the rate applicable to AOP. 6. Learned counsel for the Revenue brought to our notice the latest decision of the Court in the case of CIT vs. Atreya Trust (1992) 107 CTR (Cal) 185 : (1992) 193 ITR 716 (Cal) : TC 44R.564, IT Ref. No. 26 of....

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....bunal was, therefore, not justified in holding that the aforesaid trust was for the benefit of individuals who are determinate and known, and rendering s. 164(1) inapplicable. 7. Learned counsel for the assessee submits that though the issue is covered against the assessee the first proviso to s. 164(1) has not been considered by the Tribunal. Therefore, for that purpose the matter can be remit....