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2026 (2) TMI 805
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....lation of the provisions of the Act and is devoid of merits and is contrary to the facts on record and applicable law and as such liable to be quashed. 2. The Ld. PCIT has finalized the impugned order with improper conclusion without considering the information, arguments and evidence provided by the Appellant. B. Validity of revisionary proceedings under section 263 of the Act 1. The Impugned order passed by the Ld. PCIT is without jurisdiction as the twin conditions prescribed under section 263 of the Act i.e., the order of the Ld. AO shall be 'erroneous' and 'prejudicial to the interest of revenue', are not satisfied. 2. The Ld. PCIT erred in concluding that the assessment order passed under section 143(3) r.w.s 143(3A) and 143(3B) of the Act for impugned AY is erroneous and prejudicial to the interest of revenue, without appreciating the material on record and submissions made by the Appellant. 3. The Ld. PCIT erred in passing the impugned order, on the allegation that the Ld. AO has completed the assessment without making necessary enquiries or verifying the taxability of receipt of INR 669,27,63,437, without appreci....
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....rincipal Commissioner upon calling for the assessment records and verification, observed that the trust has received an amount of Rs. 669,27,63,437/- in the form of interest in partnership firms/shares settled by the Settlor in favour of the trust. The said interest in partnership firms/investment in unlisted shares is accounted under the head "Trust Fund" and under the head of Investment in the Financial statement. The beneficiaries of the Trust are mentioned in clause 1.6 of the operative provision of the trust deed. As per clause 1.6, beneficiaries means (a) the Settlor (b) the spouse of the Settlor (c) the children and remoter issue of the Settlor (d) such other objects or persons as are added under clause 6 and beneficiaries shall be construed accordingly. The assessee in its submission dated 8.2.2021 stated that the beneficiaries fall within the ambit of the provisions of section 56(2)(X) of the Act as per exclusion provided in 4th proviso to the section. The assessee's claim is not in order as the trust has not only been created or established solely for the benefit of the relative of the individual but also other persons can be added as per clause 6. However, such other cla....
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....e interests of the revenue. As your good self would also agree, in the present case, based on the factual matrix as provided in Section 1 of the submission the issue of receipt of INR 669,27,63,437 was examined. 3.3. In support of above, the Assessee draws your good selfs attention to the decision of the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 TTR 83 (SC), wherein it was held that every loss of tax cannot be said to be prejudicial to the interests of the revenue and that both the preconditions ought to be satisfied for jurisdiction under section 263 of the Act. The relevant extracts are as follows: "A bare reading of this provision makes it clear that the prerequisite to the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent - if the order of the Income-tax Officer i....
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.... it cannot be treated as an erroneous order prejudicial to the interest of the revenue, unless the view taken by the Income- tax Officer is unsustainable in law." 3.5. Further, in the judgement of the Hon'ble High Court of Karnataka in the case of Commissioner of Income Tax, Bangalore v. Chemsworth (P.) Ltd. [2020] 119 taxmann.com 358 (Karnataka), it was held that to invoke the provisions of Section 263 of the Act, an order must be both erroneous and prejudicial to the interests of the revenue: "8. In the backdrop of aforesaid well settled legal principles, we may examine the facts of the case in hand. In CIT v. Sunbeam Auto Ltd. [2010] 189 Taxman 436/[2011] 332 ITR 167 (Delhi) it has been held by Delhi High Court that Assessing Officer in the order of assessment is not required to give detailed reasoning in respect of each and every item of deduction and therefore, the question whether there has been an application of mind before allowing expenditure has to be examined from the record of the case. The question of lack of enquiry/inadequate enquiry is also required to be kept in mind and mere inadequacy of the enquiry would not confer jurisdiction on the Commi....
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....nable in law, as it is supported by the fourth proviso to the said section, which exempts any sum of money received by a trust created or established solely for the benefit of relative of the individual. 3.8. The reason given by your goodself that fourth proviso is not applicable in a case where the beneficiary is other than relative, and as per trust deed, trustee can add any such beneficiary. 3.9. Your goodself reliance on clause 6.1 of the trust deed is misplaced. Trust deed is entered for the benefit of the family and Clause 6.1 was added with an intention to include any other beneficiary which is a family member thus would fall under the definition of relative under the Act. 3.10. Moreover, your goodself should also take into consideration the conduct of the assessee, till date the funds are used for the benefit of beneficiaries who qualify the definition of relative provided under section 56 of the Act. Clause 6.2 states that any declaration made under clause 6.1 shall be by deed, and the assessee submits that no deed had been executed to add any beneficiary which is not a relative under the Act. 3.11. Based on above, the assessee submits t....
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....0 then the aggregate value is taxable as income from other source. Relevant extract of the section reads as - (x) where any person receives, in any previous year, from any person or persons on or after the 1^st day of April, 2017- (c) any property, other than immovable property, (A) without consideration, the aggregate fair market value of which exceeds fifty thousand rupees, the whole of the aggregate fair market value of such property; 4.2 The term 'consideration' has not been defined under the Act, the same has to be understood Indian Contract Act, 1872. Consideration as per Indian Contract Act 1872 is defined in Section 2(d) as follows: "When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise." 4.3. The meaning is elucidated by the following judicial precedent: CGT v. K. Nagammal [1997] 226 ITR 598 (Kerala) "In this context, it would not be out of place to see and consider as ....
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....g out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:" 4.6. The position that emerges by applying the above legal meaning to the facts of the case, is as under: The Trust itself is an obligation, each receipt is with an obligation that the same will be used for the benefit of beneficiaries. The settlor contributed INR 669,27,63,437 to the trust, which created a corresponding legal obligation for the trust to use the funds for the benefit of the beneficiaries. This obligation constitutes a promise by the trustee to the settlor that the contribution/ corpus / funds would be distributed as intended by the settlor; and the said promise fits in the phrase "promise to do something" and "at the desire of promisor" appearing in Section 2(d) of the Indian Contract Act, 1872. Hence, the promise given by the trust to the settlor is the consideration. 4.7. Therefore, the assessee contends that your observation that the transfer was without any consideration is not supported by the facts or the law. 4.8. Based on above, the assessee submits that section 56....
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....om its beneficiaries. Thus, the trust acting in a fiduciary capacity will not qualify as person, thereby the section 56(2)(x) is not applicable as the latter section applies to a 'person" who receives specified items without consideration. 4.11. Further, wherever intent of legislature was to treat the trust as a person the same has been done by way of artificially including it in the definition itself. For example, under Central Goods and Services Tax Act, 2017, person is defined as 2. Definitions. - In this Act, unless the context otherwise requires, - (84)-person includes (m) trust; and 4.12. In light of the above legal analysis, we submit that the receipt by trust is essentially receipt by the relatives being beneficiary and thus clearly immune from the applicability of section 56(2)(x) and some part of the contribution constitutes receipt by the settlor himself which cannot constitute income based on the basic fundamental principle that no one can earn income from himself. (c) Receipt of money is from an individual by a trust created/solely established for the benefit of relative of the individual. 4.13. Without....
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....r established solely for the benefit of the relatives of the individual. 6.2 As per the IT Act, relatives means- i In case of an individual- A. Spouse of the individual; B. Brother or sister of the individual; C. Brother or sister of the spouse of the individual; D. Brother of sister of either of the parents of the individual; E. Any lineal ascendant or descendant of the individual; F. Any lineal ascendant or descendant of the spouse of the individual; G. Spouse of the person referred to in item (B) to (F)." Hence, any person or class of persons (whether or not in existence or ascertained) or charity, mentioned in the clause 6.1 does not fall under the meaning of relatives. The ld. PCIT observed that the assessee in its reply explained that the trust deed is entered for the benefit of the family and clause 6.1 was added with an intention to include any other beneficiary which is a family member thus would fall under the definition of relative under the Act. The ld. PCIT however was of the view that the clause 6.1 does not represent the same intention. The clause empowers the trustee to add any perso....
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....ce of opinion and if the issue is already examined by the AO even if the assessment order is silent, the ld. PCIT has no jurisdiction to invoke the provisions of section 263 of the Act. Further, on merit of the case, the ld. A.R. of the assessee submitted that trust is not a person u/s 2(31) of the Act and receipt of money is from an individual by a trust created/solely established for the benefit of relative of an individual and therefore, the provisions of section 56(2)(X) of the Act is not applicable to the assessee. Further, ld. A.R. of the assessee drew our attention on an application for admission of the additional evidence filed by the assessee and vehemently submitted that the intention of the assessee was never to include non-relatives into the deed of trust which is also evident from the fact that since the date of creation of the trust in 2018 till date, the power of the trustee to add beneficiary has not even been invoked to add any relative, much less a non-relative and therefore, to remove any ambiguity on the power of the trustee, the assessee trust has executed and registered a supplementary deed dated 13.5.2025 to restrict the list of beneficiaries explicitly only ....
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....ing so, we find good and sufficient reason in not submitting the additional evidence before the lower authorities. Accordingly, we admit these additional evidences as in our opinion these are essential for adjudication of the issue in the present appeal. 8. We have heard the rival submission, perused material available on record. We are of the considered opinion that in an appeal against an assessment order, the Tribunal exercises regular appellate jurisdiction over the assessment, examining the correctness of additions, disallowances, and other determinations made by the AO on facts and Law, however, for an appeal against a revision order u/s 263 of the Act, the Tribunal is essentially confine itself to examine (1) Whether the very assumption of 263 jurisdiction is valid (2) whether the PCIT's conclusion on "erroneous and prejudicial" are sustainable in law and (3) Whether due process (opportunity of hearing, inquiry) was followed or not. While doing so equal importance must also be given to the AO's recorded enquiries and reasoning, the PCIT's satisfaction & reasons keeping in mind that section 263 of the Act is a revision, not the Appellate power. Further, when th....
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....in 4th proviso to the section. The assessee's claim is not in order as the trust has not only been created or established solely for the benefit of the relative of the individual but also other persons can be added as per clause 6. However, such other class of persons covered in proviso XI which is applicable from assessment year 2020-21. Therefore, the assessee is not falling within the ambit of the provisions of section 56(2)(X) of the Act for the assessment year 2018-19 and the amount of Rs. 669,27,63,437/- received in the form of interest has to be brought to tax under the head "Income from other sources" as provided in section 56(2)(X) of the Act. In the circumstances, it is proposed to set aside the assessment order dated 07.04.2021 for being reframed accordingly by virtue of the power conferred upon under the provisions of section 263 of the Act. 8.5 Now before proceedings further, it is apposite here to mention the relevant provision of Income Tax Act which is reproduced below :- Revision of orders prejudicial to revenue. 263. (1) The [ [Principal Chief Commissioner or Chief Commissioner or Principal Commissioner] or] Commissioner may call for and e....
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....e powers of the * [Principal Commissioner or]Commissioner under this sub-section shall extend [and shall be deemed always to have extended]to such matters as had not been considered and decided in such appeal.] [Explanation 2. - For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer [or the Transfer Pricing Officer, as the case may be,] shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal [Chief Commissioner or Chief Commissioner or Principal] Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. [Explanation 3 .- For the pu....
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....ecourse cannot be had to section 263(1) of the Act. The phrase "prejudicial to the interests of the Revenue" is not an expression of art and is not defined in the act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax" .. " "' .. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an erroneous order of the Income-tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. The phrase "prejudicial to the interest of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudi....
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.... defined under the Act. The Apex Court in the above case also held that an incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. Further, the phrase 'prejudicial to the interests of the revenue' is not an expression of art and is also not defined in the Act. The various High Courts have treated loss of tax as prejudicial to the interests of the revenue. If due to an erroneous order of the AO, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue. There must be some grievous error in the Order passed by the AO, which might set a bad trend or pattern for similar assessments, which on abroad reckoning, the Commissioner might think to....
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....l. CIT [1975] 99 ITR 375 (Delhi)]. (iv) The expression "prejudicial to the interest of the revenue" while not to be confused with the loss of tax will certainly include an erroneous order which results in a person not paying tax which is lawfully payable to the revenue. [See Malabar Industrial Co. Ltd.'s case (supra)]. (v) Every loss of tax to the revenue cannot be treated as being "prejudicial to the interest of the revenue". For example, when the Assessing Officer takes recourse to one of the two courses possible in law or where there are two views possible and the Commissioner does not agree with the view taken by the Assessing Officer which has resulted in a loss. [See CIT v. Max India Ltd. [2007] 295 ITR 282 (SC)]. (vi) There is no requirement of issuance of a notice before commencing proceedings under section 263 of the Act. What is required is adherence to the principles of natural justice by granting to the assessee an opportunity of being heard before passing an order under section 263. [See Electro House's case (supra)]. (vii) If the Assessing Officer acts in accordance with law his order cannot be termed as erroneous by the Commissioner, s....
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.... 2018-19 on 30.08.2018 showing total income of Rs. 0/-. The case was selected for scrutiny through Computer Aided Scrutiny Selection (CASS) and subsequently notices u/s. 143(2) and u/s. 142(1) of the IT Act were issued and served upon the assessee asking to submit details/clarification in respect of the assessment proceedings. In response to Notice u/s. 143(2) and Notices u/s.142(1) the assessee furnished written explanation/clarification along with submission in support of the return of income. After taking into account all relevant material available on record, an assessment is hereby made without making any modification to the returned income and the sum payable or refund of any amount due on the basis of the assessment is determined as per the notice of demand. Yours faithfully, Additional / Joint / Deputy / Assistant Commissioner of Income Tax/ Income-tax Officer, National e-Assessment Centre, Delhi Copy to: Assessee Yours faithfully, Additional / Joint / Deputy / Assistant Commissioner of Income Tax/ Income-tax Officer, National e-Assessment Centre, Delhi On going through the....
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....ues during the assessment proceedings & therefore the ld. PCIT had rightly held the order of the AO to be erroneous and prejudicial to the interest of the revenue as the AO had completed the assessment without making necessary inquiries or verifying the issues. 8.12 Before us, the ld. AR of the assessee vehemently submitted that the intention of the assessee was never to include non-relatives into the deed of trust and therefore, to remove any ambiguity on the power of the trustee, the assessee has already executed and registered a supplementary deed dated 13.05.2025 to restrict the list of beneficiaries explicitly only to the relatives of the settlor. This action of the assessee in executing the supplement deed on 13.05.2025 post revision order of the ld. PCIT clearly shows the importance of the issues not enquired by the AO during the course of assessment proceedings. Even if the assessee have executed the supplement deed on 13.05.2025 & produced the same before us as an additional evidence, the moot question remain the same i.e. whether the AO had made necessary enquiries or verification which should have been made during the course of assessment proceedings or not. The answe....
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....t of the individual; (F) Any lineal ascendant or descendant of the spouse of the individual; (G) Spouse of the person referred to in item (B) to (F) .; and (ii) In case of a Hindu undivided family, any member thereof;] Therefore, we are also of the considered opinion that the trust was not created or established solely for the benefit of relative of the individual in view of the fact that as per clause 1.6 of the deed the beneficiaries means such other persons as are added under clause 6 and clause 6 states that the Trustee may, at any time during the Trust Period, declare that any person or class of persons (whether or not in existence or ascertained) or Charity shall be added to the class of Beneficiaries. Therefore, the ld. PCIT is of the view that any person or class of persons (whether or not in existence or ascertained) or charity, mentioned in the clause 6.1 does not fall under the meaning of relatives. The clause empowers the trustee to add any person or class of persons (whether or not in existence or ascertained) or charity to the class of beneficiaries. Thus, the benefits are not restricted to the relatives only. In the aforesaid circumstanc....
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....e further inquiries before accepting the claim made by the assessee in his return. The reason is obvious. Unlike the Civil Court which is neutral in giving a decision on the basis of evidence produced before it, the role of an Assessing Officer under the Income-tax Act is not only that of an adjudicator but also of an investigator. He cannot remain passive in the face of a claim, which is apparently in order but calls for further enquiry. He must discharge both the roles effectively. 9. We are also of the considered opinion that as rightly contended by the ld. CIT DR, there is no express view/opinion of the Assessing Officer, surely it also cannot be said that the same is a plausible view. Thus under the facts & circumstances discussed above, it was a reasonably fit case for exercising revisionary jurisdiction under section 263 of the Act. After all, the Principal Commissioner of Income-tax gave another chance to the assessee to furnish the necessary supportive evidence of its claim and explain why the proposed addition should not be made to income. 10. Before parting, we make it clear that we have not made any comments on the merits of the case and the assessee trust is at l....
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....n the administration of the Trust and for the avoidance of doubt the Trustee wishes, in the manner . hereinafter appearing, to exercise their power of variation under clause 28 of the Trust Deed to formally align the scope of powers contained in the Trust Deed with the intent of the Settlor :) ; and express purposes of the Trust. . (F) It is hereby clarified that this Deed does not involve the transfer of any immovable property directly or indirectly through such execution. OPERATIVE: 1. INTERPRETATIONS Where the context admits, the definitions and rules of construction contained in the Trust Deed shall apply. 2. VARIATION The Trustee, in exercise of the power in that behalf conferred upon them by clause 28 of the Trust Deed and of all other relevant powers, HEREBY DECLARES that, the provisions of the Trust shall be VARIED by the following changes, additions and/or deletions (as the case may be): 2 Lunaury Page 2 of 5 BANGALORE Document 3 BNG(U)- NR 121 2025-26 10 Page 4-8 CADA(2) NO :- JAY-4-00121-2025-26 த௠1 200.00 2 450.00 650.00 Vervain Management Private Limited is Rep. by Mr.Nandan Laxman Sastry 000 8at600 ....
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....med deleted and the following substituted in its place: 2.4 References to descendant shall be construed to exclude references to illegitimate descendant (whether illegitimate themselves or descended through those who are illegitimate) and to include references to persons who have been legally adopted by those who have so adopted them. € 2.6 Clause 6 (Power to add Beneficiaries) of the Trust Deed shall be deemed deleted. 2.7 Clause 7.2 (Power of Exclusion) of the Trust Deed shall be deemed deleted and the following substituted in its place: 2 BANGALORE Page 3 of 5 Document 5 6 BNG(U)-JNR 121 2025-26 15 .Paca 6-8 e SR.No Identifier Name Address No.94,BTS Layout, Dr Rajkumar Road,. Bengaluru South, BENGALURU URBAN, KARNATAKA - 560076 Siddalingesh T B S/o Basavaraj Gowda (Identifier) 1 H.B. APd No.23,Model House 4th Street, Basavanagudi ,, Bengaluru South, BENGALURU URBAN, KARNATAKA- 560004 M B Abhi Chandran S/o H S Madana Kesari (Identifier) 2 Senior Sub Registrar veo Jagang HA BSD Bangalore City 30230" JAY-4-00121-2025-26 en VISTRAR JAYANAGARA TAR SHAL O Senior Sup-Registrar JaParatif Party - D....
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....aws of India, without regard to the principles of conflicts of laws. 4. COUNTERPARTS This Deed may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same deed. LuchaLES MANGALORE Page 4 of 5 Document 7 8 BING(U)- NR 121 205-6 1 P:8-80 5. SEVERABILITY If any provision of this Deed is or becomes invalid, unenforceable or prohibited by applicable law, this Deed shall be considered divisible as to such provision and such provision shall be inoperative and the remainder of this Deed shall be valid, binding and take effect as though such provision was not included herein. IN WITNESS WHEREOF the Trustee has caused this Deed to be executed on the day and year first hereinabove written. THE SEAL of Vervain Management Private Limited is hereby affixed, and -- For VERVAIN MANAGEMENT PRIVATE LIMITED SIGNED AND DELIVERED by Nandan Laxman Sastry being the Authorised Signatory withinnamed Authorised Signatory AAAA in the presence of M.B. All M.B.Ablichandidu, 23, Moda home 4th Street, Basovouagudi Bangalde-560004 BANGALORE 800- , SIDDALINGESH. T.B #94 BTS Lyon, Bangalore ....
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....settlor (b) The spouse of the settlor (c) The children and remoter issue of Note: If digitally signed, the date of digital signature may be taken as date of document BUILDING, 80 FEET ROAD, 6TH BLOCK, NEAR KHB GAMES VILLAGE, KORAMANGALA, BENGALURU, Karnataka, 560095 /Email: BANGALORE [email protected]. E TRU Stins.pox. in to woww incometax.ary in rtal has been ch Certified True Copy us Document 9 20 AADTB3305J- BUCKEYE TRUST A.Y. 2018-19 ITBA/REV/F/REV1/2023-24/1062548669(1) the settlor (d) Such other objects or persons as are added under clause 6 and beneficiaries shall be construed accordingly. The assessee in its submission dated 08-02-2021 stating that the beneficiaries fall within the ambit of the provisions of Sec.56(2)(X) of the Act as per exclusion provided in fourth proviso to the section. The assessee's claim is not in order as the Trust has not only been created or established solely for the benefit of the relative of the individual but also other persons can be added as per clause 6. However, such other class of persons covered in Proviso XI which is applicable from AY: 2020-21. Therefore, the assessee is not falling within the ambit ....