Income Tax Appellate Tribunal

ITO - 22(1)(6) Vs. ARCIL AARF-I-1 Trust

MANU/IU/0629/2021

15.09.2021

Direct Taxation

In a case of revocable Trust, the provisions of Section 61 to 63 of IT Act were applicable and the assessee could not be assessed as AOP

Assessee is a Trust created by Asset Reconstruction Company India Ltd. (ARCIL) for the purpose of liquidating/recovering/realizing the non-performing assets. The assessee has been created pursuant to the provisions of Securitization and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 (SARFAESI Act) and the guidelines of RBI to acquire financial assets of the borrowers classified as non-performing assets (NPAs). Accordingly, ARCIL acquires stressed financial assets that are classified as NPAs from the banks/Financial Institutions. The assessee derived income from asset reconstruction activity and handling of NPAs of banks and Financial Institutions. The assessee declared Nil Income in its return of income.

During assessment proceedings, Ld. AO called upon the assessee to explain as to on what basis it had claimed its receipts as not liable to tax in its hand. Also, the assessee was directed to put forth an explanation as to why the income/loss derived by it may not be taxed in its hands in the status as that of a trust/AOP. Ld. AO observed that the assessee was to be assessed as AOP and not as a Trust. Alternatively, even if the status of the assessee was to be accepted as that of a trust, the same being in the nature of a non-revocable trust would thus not be eligible to avail the benefit of Sec. 61 to 63 of the Income Tax Act, 1961.

On appeal, Ld. CIT(A) reversed the decision of AO and held that there was no prohibition in the Trust Act on the settler becoming beneficiary. The assessee was established under SARFAESI Act following guidelines of RBI and therefore, its validity was beyond doubt. Further. Sec. 61 to 63 does not imply that the right of revocation should be without any conditions. The terms of trust deed made it clear that the contributions was revocable and therefore, the income was to taxed in the hands of SR holders as per the provisions of Sec. 61 to 63 of the Act. The assessee could not be called an AOP since there was no agreement amongst beneficiaries inter-se. The beneficiaries were mere recipients of income earned by the trust. Therefore, the income was not taxable in hands of the assessee but it was taxable in the hands of the contributors. Aggrieved as aforesaid, the revenue has approached present court.

The present court has relied upon the decision of coordinate bench in CIT Vs. Scheme A1 of ARCIL CPS 002 XI Trust whereby revision filed by revenue has been dismissed with the findings that the assessee was a valid trust. Since it was revocable Trust, the provisions of Sec. 61 to 63 were applicable and the assessee could not be assessed as AOP. The income was to be taxed in the hands of the SR holders. Since the respective shares were known since inception, it could not be considered as indeterminate Trust. Finally the appeal of the revenue was dismissed.

Tags : Revocable Trust applicability of provisions

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