M/s. B.D. Gupta & Sons, New Delhi v. ITO, New Delhi

ITA 5636/DEL/2014 | 1992-1993
Pronouncement Date: 31-07-2015

Appeal Details

RSA Number 563620114 RSA 2014
Assessee PAN AADHB5998K
Bench Delhi
Appeal Number ITA 5636/DEL/2014
Duration Of Justice 9 month(s) 11 day(s)
Appellant M/s. B.D. Gupta & Sons, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Bench Allotted SMC 1
Tribunal Order Date 31-07-2015
Date Of Final Hearing 30-07-2015
Next Hearing Date 30-07-2015
Assessment Year 1992-1993
Appeal Filed On 20-10-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL ACCOUNTANT MEMBER ITA NO.5636/DEL/2014 ASSESSMENT YEAR : 1992-93 B.D. GUPTA & SONS 26 SCHOOL LANE BANGALI MARKET NEW DELHI. PAN : AADHB5998K VS. ITO WARD-31(2) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.P. RASTOGI ADVOCATE & MS LALITHA KRISHNAMURTHY CA DEPARTMENT BY: SHRI OM PRAKASH MEENA SR.DR DATE OF HEARING : 30.07.2015 DATE OF PRONOUNCEMENT : 31.07.2015 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 21.7.2014 IN RELATION TO ASSESSMENT YEAR 1992-93. 2. THIS IS THIRD ROUND OF PROCEEDINGS BEFORE THE TR IBUNAL. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED R ETURN DECLARING INCOME OF RS.67 910/- IN THE CAPACITY OF B.D. GUPTA & SONS (H UF). THE ASSESSMENT ITA NO.5636/DEL/2014 2 WAS FINALIZED ON PROTECTIVE BASIS. AT THIS JUNCTURE IT IS RELEVANT TO MENTION THAT SHRI B.D. GUPTA EXPIRED INTESTATE IN 1970. BE FORE HIS DEATH HE HAD CERTAIN HOUSE PROPERTIES GIVING INCOME UNDER THE HE AD INCOME FROM HOUSE PROPERTY. APART FROM THAT HE HAD ALSO SET UP A BUS INESS IN THE NAME AND STYLE OF `GUPTA SPORTS HOUSE. LITIGATION CROPPED UP AMONGST THE FAMILY MEMBERS OF SHRI B.D. GUPTA ON THE QUESTION OF DISTR IBUTION OF HIS PROPERTIES. THE MATTER WAS CARRIED BEFORE THE HON BLE DELHI HIGH COURT BY ONE OF THE PARTIES TO THE DISPUTE. THE HONBLE SIN GLE JUDGE VIDE INTERIM JUDGMENT DATED 17.2.84 OF THE HONBLE DELHI HIGH C OURT DEALT WITH THE PROPERTIES OF SHRI B.D. GUPTA AND BUSINESS IN THE N AME AND STYLE OF GUPTA SPORTS HOUSE. IT WAS HELD THAT THESE IMMOVABLE PRO PERTIES AND SPORTS BUSINESS WERE ACQUIRED BY SHRI B.D. GUPTA WITH HIS OWN FUNDS AND NOT WITH THE FUNDS OF HUF. THE HONBLE SINGLE JUDGE DETERMI NED THE UNDISPUTED SHARE OF ALL THE FAMILY MEMBERS AT 60%. IT WAS DIRE CTED THAT UNDISPUTED SHARE OF 60% BE GIVEN TO THE RESPECTIVE PARTIES. T HE REMAINING 40% WAS HELD TO BE DISPUTED. SOME ADMINISTRATOR WAS APPOINT ED. 3. SHRI RAMNIK GUPTA A FAMILY MEMBER OF SH. B .D. GUPTA FILED RETURN FOR THE YEAR UNDER CONSIDERATION DECLARING REMAININ G 40% OF INCOME IN THE HANDS OF B.D. GUPTA AND SONS (HUF). THE AO TAXED 1 00% OF THE INCOME ITA NO.5636/DEL/2014 3 AS HUFS INCOME. THE ASSESSEE CARRIED THE MATTER B EFORE THE FIRST APPELLATE AUTHORITY WHO HELD THAT ONLY 40% WAS TAXABLE IN TH E HANDS OF THE ASSESSEE HUF. THE TRIBUNAL AFFIRMED THE VIEW TAKEN BY THE L D. CIT(A). THE REVENUE APPROACHED THE HONBLE HIGH COURT. BEFORE ANY DECISION BY THE HONBLE HIGH COURT A FAMILY SETTLEMENT WAS ARRIVED AT AMONGST FAMILY MEMBERS ON 5.11.2004. IN VIEW OF THIS FAMILY SETTL EMENT THE HONBLE HIGH COURT DEALING WITH THE APPEAL FILED BY THE REV ENUE AGAINST THE ORDER OF THE TRIBUNAL SENT THE MATTER BACK TO THE TRIBUN AL FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THIS FAMILY SETTLEMENT. THE TRIBUNAL IN TURN REMITTED THE MATTER TO THE AO FOR DECIDING THE ISSUE DE NOVO IN THE LIGHT OF THE SCENARIO PREVAILING AT THAT TIME. THE AO IN THE I NSTANT PROCEEDINGS AGAIN TAXED 100% INCOME IN THE HANDS OF THE ASSESSEE HUF. THE LD. CIT(A) DIVIDED TOTAL INCOME IN TWO PARTS VIZ. FIRST BEI NG BUSINESS INCOME AND INTEREST INCOME AND THE SECOND BEING HOUSE PROPER TY INCOME. IT WAS HELD THAT BUSINESS INCOME AND INTEREST INCOME BELONGED I N ENTIRETY TO THE ASSESSEE HUF AND HENCE ASSESSABLE IN ITS HANDS ON SUBSTANTIVE BASIS. AS REGARDS THE INCOME FROM HOUSE PROPERTY THE LD. CIT (A) HELD THAT THIS BELONGED TO INDIVIDUALS AND NOT TO THE ASSESSEE HUF AS THESE HOUSE PROPERTIES HAD ALREADY BEEN PARTITIONED AMONGST LIT IGANTS IN VIEW OF THE ITA NO.5636/DEL/2014 4 FAMILY SETTLEMENT. THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL CHALLENGING THE DECISION OF THE LD. CIT(A) QUA BUSINESS INCOME AND INTEREST INCOME. NO MATERIAL HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE REVENUE HAS ALSO FILED ANY APPEAL AGAINST THE IMPUGNED ORDE R. AS SUCH I AM PROCEEDING TO DISPOSE OF THE ISSUES TAKEN UP BY THE ASSESSEE IN ITS APPEAL. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. THE SHORT QUESTION BEFORE ME IS AS TO W HETHER OR NOT THE BUSINESS AND INTEREST INCOME SHOULD BE INCLUDED IN THE ASSESSEE HUFS TOTAL INCOME. IN THIS REGARD IT IS SIGNIFICANT TO GO TH ROUGH THE VERDICT OF THE SINGLE JUDGE OF THE HONBLE DELHI HIGH COURT A COP Y OF WHICH IS AVAILABLE AT PAGE 46 ONWARDS OF THE PAPER BOOK. IN PARA 15 THE HONBLE HIGH COURT VIDE ITS INTERIM ORDER HAS HELD THAT: THERE ARE S TRONG INDICATIONS THAT ALL THE PROPERTIES WERE SELF ACQUIRED BY B.D. GUPTA . IT IS WELL SETTLED LAW THAT IF A PROPERTY STANDS IN THE NAME OF A PERSON THE SAME I S TO BE TREATED AS SELF ACQUIRED PROPERTY AGAIN ON PAGE 12 IT HAS BEE N EMPHATICALLY HELD THAT: THE AFORESAID RECITAL CLEARLY SHOWS THAT B.D. GUPTA ACQUIRED THE PROPERTY WITH HIS OWN FUNDS AND NOT WITH THE FUNDS OF HUF. IN PARA NO.27 THERE IS DISCUSSION ABOUT THE BUSINESS IN TH E NAME OF M/S GUPTA ITA NO.5636/DEL/2014 5 SPORTS HOUSE CONNAUGHT CIRCUS NEW DELHI. THE HON BLE HIGH COURT DIRECTED: THAT BUSINESS WILL HAVE TO BE TAKEN OVER AND MANAGED UNDER THE SUPERVISION OF THE RECEIVER. AGAIN IN PARA NO. 3 2 IT HAS BEEN MENTIONED THAT SHRI B.L. ANAND ADVOCATE APPOINTED AS A LOCAL COMMISSIONER WILL GO TO THE SAID SHOP (GUPTA SPORTS HOUSE F-25 CONNAUG HT CIRCUS NEW DELHI.) FOR MAKING INVENTORY OF THE GOODS AND ACCOUNT BOOKS LYING THERE. THIS DISCUSSION INDICATES THAT THE BUSINESS CARRIED ON B Y GUPTA SPORTS HOUSE WAS PART AND PARCEL OF CONSIDERATION BY THE HONBLE DEL HI HIGH COURT IN ITS INTERIM ORDER. THE OBSERVATIONS OF THE LD. CIT(A) ON PAGE 16 OF THE IMPUGNED ORDER THAT THE HONBLE DELHI HIGH COURT HA D NOT APPOINTED ANY RECEIVER FOR THE BUSINESS INCOME AND INTEREST INCOM E IS FACTUALLY UNFOUNDED. 5. IN THIS REGARD IT IS OBSERVED THAT SIMPLY BEC AUSE THE ASSESSEE INADVERTENTLY FILED RETURN OF INCOME IN THE CAPACIT Y OF HUF WOULD NOT MAKE HUF LIABLE TO ANY TAX UNLESS INCOME ACTUALLY BELONG S TO HUF. IN THE SAME WAY THE PROVISIONS OF SECTION 171 OF THE ACT PROV IDING THAT A HINDU FAMILY HITHERTO ASSESSED AS UNDIVIDED SHALL BE DEEMED FOR THE PURPOSES OF THIS ACT TO CONTINUE TO BE A HINDU UNDIVIDED FAMILY EXCEPT WHERE AND IN SO FAR AS A FINDING OF PARTITION HAS BEEN GIVEN UNDER THIS SECT ION IN RESPECT OF THE HINDU ITA NO.5636/DEL/2014 6 UNDIVIDED FAMILY CAN APPLY ONLY ONCE A VALID PRE - EXISTENCE OF HUF IS PROVED. IF THERE IS NO VALID HUF IN EXISTENCE THE PROVISIONS OF SECTION 171 FOR RECORDING A FINDING OF PARTITION OF HUF CANNOT BE INVOKED. 6. THE LD. AR HAS RIGHTLY RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN ITO VS. CH. ATCHAIAH (1996) 218 ITR 239 (SC ) FOR THE PROPOSITION THAT ONLY THE RIGHT PERSON IS TO BE ASSESSED. IT IS VIVID THAT THERE CAN BE NO ESTOPPEL AGAINST THE PROVISIONS OF THE ACT. IF A PA RTICULAR INCOME IS NOT CHARGEABLE TO TAX IN THE HANDS OF A PERSON AS PER L AW THEN THE SAME CANNOT BE TAXED MERELY ON THE REASON OF SUCH PERSON INADVE RTENTLY FILING RETURN DECLARING SOME INCOME. IN VIEW OF THE FACT THAT THE PROPERTIES BELONGED SEPARATELY TO SHRI B.D. GUPTA BEFORE HIS DEATH AND HE DIED INTESTATE WITHOUT EXECUTING ANY WILL NO HUF EVER CAME INTO EXISTENCE . IN THAT VIEW OF THE MATTER NO INCOME CAN BE LOGICALLY CONSIDERED AS TA XABLE IN THE HANDS OF SHRI B.D. GUPTA HUF. I THEREFORE HOLD THAT THE DECISION OF THE LD. CIT(A) IN DIRECTING THE BUSINESS AND INTEREST INCOME TO BE TAXABLE IN THE HANDS OF HUF IS NOT SUSTAINABLE. 7. AS NOTED ABOVE THE LD. AR HEAVILY RELIED ON TH E CASE OF CH. ATCHAIAH (SUPRA) IN WHICH IT HAS BEEN HELD THAT ONLY THE RIGHT PERSO N IS TO BE ITA NO.5636/DEL/2014 7 ASSESSED. THE JUDGMENT DOES NOT END THERE. IT HAS F URTHER BEEN HELD THAT MERELY BECAUSE A WRONG PERSON IS TAXED WITH RESPECT TO A PARTICULAR INCOME THE AO IS NOT PRECLUDED FROM TAXING THE RIGHT PERSO N WITH RESPECT TO THAT INCOME. THEIR LORDSHIPS LAID DOWN THAT : `UNDER TH E PRESENT ACT THE ITO .. CAN AND HE MUST TAX THE RIGHT PERSON AND THE RIGHT PERSON ALONE. BY 'RIGHT PERSON' IS MEANT THE PERSON WHO IS LIABLE T O BE TAXED ACCORDING TO LAW WITH RESPECT TO A PARTICULAR INCOME. ... WHERE A PERSON IS TAXED WRONGFULLY HE IS NO DOUBT ENTITLED TO BE RELIEVED OF IT IN ACCORDANCE WITH LAW BUT THAT IS A DIFFERENT MATTER ALTOGETHER. THE PERSON LAWFULLY LIABLE TO BE TAXED CAN CLAIM NO IMMUNITY BECAUSE THE AO (ITO) HAS TAXED THE SAID INCOME IN THE HANDS OF ANOTHER PERSON CONTRARY TO L AW . THE CRUX OF THE JUDGMENT IS THAT IF A WRONG PERSON HAS BEEN ASSESSE D THEN THE ITO MUST ASSESS CORRECT PERSON. 8. HAVING HELD THAT NO INCOME IS CHARGEABLE TO TA X IN THE HANDS OF HUF THE NEXT QUESTION IS THAT WHEN SOME INCOME HAS ACTU ALLY ARISEN FROM HOUSE PROPERTY BUSINESS AND INTEREST THEN WHERE SHOULD IT BE TAXED? IN OTHER WORDS WHO IS THE RIGHT PERSON CHARGEABLE TO TAX IN RESPECT OF THE INCOME? ON A SPECIFIC QUERY ABOUT THE CORRECT PERSON IN WHO SE HANDS THIS INCOME SHOULD BE TAXED THE LD. AR SUBMITTED THAT THE SAME CAN BE TAXED ONLY IN THE ITA NO.5636/DEL/2014 8 HANDS OF BENEFICIARIES AS PER THE SETTLEMENT AND TH E ASSESSEE HAS NO RELATION WITH THEM AND IT IS UP TO THE REVENUE TO FIND SUCH BENEFICIARIES. I FIND THAT THE FAMILY SETTLEMENT TOOK PLACE IN THE YEAR 2004 A ND IT IS FROM SUCH DATE THAT THE SHARES OF THE BENEFICIARIES CAME TO BE DEF INED. IN SUCH CIRCUMSTANCES IT CANNOT BE SAID THAT THE FAMILY SE TTLEMENT SHALL BE CONSIDERED TO HAVE RETROSPECTIVE EFFECT IN THE SENS E THAT WHEN DURING THE PERIOD ANTERIOR TO SUCH SETTLEMENT INCLUDING THE Y EAR IN QUESTION THERE WERE NO DEFINED SHARES OF THE BENEFICIARIES IT SHOULD B E PRESUMED THAT THE SHARE IN DISPUTED INCOME ALSO BELONGED TO THEM IN TERMS O F FAMILY SETTLEMENT AND TAX BE LEVIED ACCORDINGLY. IN THIS REGARD IT IS PE RTINENT TO NOTE THE MANDATE OF THE RELEVANT PART OF SECTION 159 WHICH READS A S UNDER :- 159. (1) WHERE A PERSON DIES HIS LEGAL REPRESENTATIVE SHALL BE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN LIAB LE TO PAY IF HE HAD NOT DIED IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE D ECEASED. (2) FOR THE PURPOSE OF MAKING AN ASSESSMENT (INCLUD ING AN ASSESSMENT REASSESSMENT OR RECOMPUTATION UNDER SECTION 147) OF THE INCOME OF THE DECEASED AND FOR THE PURPOSE OF LEVYING ANY SUM IN THE HAND S OF THE LEGAL REPRESENTATIVE IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (1) (A) ANY PROCEEDING TAKEN AGAINST THE DECEASED BEFORE HI S DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGAL REPRESE NTATIVE AND MAY BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF THE DECEASED; (B) ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAINST THE DECEASED IF HE HAD SURVIVED MAY BE TAKEN AGAINST THE LEGAL REP RESENTATIVE; AND ITA NO.5636/DEL/2014 9 (C) ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACC ORDINGLY. . 9. A BARE PERUSAL OF THE PROVISION INDICATES THAT W HERE A PERSON DIES HIS LEGAL REPRESENTATIVE SHALL BE INTER ALIA LIABLE TO PAY TAX ON THE INCOME OF THE DECEASED IN THE SAME MANNER AS THE DECEASED WOULD HAVE PAID IF HE HAD NOT DIED. ANY PROCEEDINGS TAKEN AGAINST THE DE CEASED BEFORE HIS DEATH SHALL BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE AND FURTHER ANY PROCEEDINGS WHICH COULD HAVE BEEN TAKEN AGAINST THE DECEASED IF HE HAD SURVIVED MAY ALSO BE TAKEN AGAINST THE LEGAL REPRES ENTATIVE. THE CRUX OF THE MATTER IS THAT LEGAL REPRESENTATIVE IS INTER ALIA LIABLE TO PAY TAX IN RESPECT OF INCOME OF THE DECEASED FROM THE BEGINNING OF THE YEAR UP TO THE DATE OF HIS DEATH. 10. SECTION 168 DEALS WITH INCOME OF THE ESTATE OF DECEASED PERSON. THE RELEVANT PART OF THIS SECTION READS AS UNDER : - 168. (1) SUBJECT AS HEREINAFTER PROVIDED THE INCOME OF THE ESTATE OF A DECEASED PERSON SHALL BE CHARGEABLE TO TAX IN THE H ANDS OF THE EXECUTOR ( A ) IF THERE IS ONLY ONE EXECUTOR THEN AS IF THE E XECUTOR WERE AN INDIVIDUAL; OR ( B ) IF THERE ARE MORE EXECUTORS THAN ONE THEN AS I F THE EXECUTORS WERE AN ASSOCIATION OF PERSONS; ITA NO.5636/DEL/2014 10 AND FOR THE PURPOSES OF THIS ACT THE EXECUTOR SHAL L BE DEEMED TO BE RESIDENT OR NON-RESIDENT ACCORDING AS THE DECEASED PERSON WA S A RESIDENT OR NON- RESIDENT DURING THE PREVIOUS YEAR IN WHICH HIS DEAT H TOOK PLACE. (2) .. (3) SEPARATE ASSESSMENTS SHALL BE MADE UNDER THIS SECTION ON THE TOTAL INCOME OF EACH COMPLETED PREVIOUS YEAR OR PART THER EOF AS IS INCLUDED IN THE PERIOD FROM THE DATE OF THE DEATH TO THE DATE O F COMPLETE DISTRIBUTION TO THE BENEFICIARIES OF THE ESTATE ACCORDING TO THEIR SEVERAL INTERESTS . (4) IN COMPUTING THE TOTAL INCOME OF ANY PREVIOUS Y EAR UNDER THIS SECTION ANY INCOME OF THE ESTATE OF THAT PREVIOUS YEAR DIST RIBUTED TO OR APPLIED TO THE BENEFIT OF ANY SPECIFIC LEGATEE OF THE ESTATE DURING THAT PREVIOUS YEAR SHALL BE EXCLUDED; BUT THE INCOME SO EXCLUDED SHALL BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF SUCH SPECIFIC LEGATE E. EXPLANATION .IN THIS SECTION 'EXECUTOR' INCLUDES AN ADMINISTR ATOR OR OTHER PERSON ADMINISTERING THE ESTATE OF A DECEASED PERSO N. 11. A BARE PERUSAL OF SUB-SECTION (1) OF SECTION 16 8 DIVULGES THAT THE INCOME OF THE ESTATE OF THE DECEASED SHALL BE CHARG EABLE TO TAX IN THE HANDS OF THE EXECUTOR. SUB-SECTION (4) CLARIFIES THAT IF ANY INCOME OF THE ESTATE STANDS DISTRIBUTED TO OR APPLIED TO THE BENEFIT OF ANY SPECIFIC LEGATEE OF THE ESTATE DURING THAT PREVIOUS YEAR THEN THAT PART OF THE INCOME SHALL BE EXCLUDED FROM THE TOTAL INCOME OF THE EXECUTOR. HOW EVER SUCH INCOME SHALL BE INCLUDED IN THE TOTAL INCOME OF THE PREVIO US YEAR OF SUCH SPECIFIC LEGATEE. THIS SHOWS THAT BUT FOR ANY DISTRIBUTION T O SPECIFIC LEGATEE THE ASSESSMENT IS REQUIRED TO BE MADE ON THE EXECUTOR O N THE TOTAL INCOME FROM THE ESTATE OF THE DECEASED FOR THE PERIOD FROM THE DATE OF DEATH TO THE DATE OF ITA NO.5636/DEL/2014 11 COMPLETE DISTRIBUTION TO THE BENEFICIARIES TO THE E STATE ACCORDING TO THEIR SEVERAL INTERESTS ON YEAR TO YEAR BASIS. WHEN I REA D SECTION 159 IN JUXTAPOSITION TO SECTION 168 THE POSITION WHICH EM ERGES IS THAT WHEREAS THE INCOME EARNED BY THE DECEASED UP TO THE DATE OF HIS DEATH IS CHARGEABLE TO TAX IN THE HANDS OF LEGAL REPRESENTATIVE U/S 159 I NCOME ARISING FROM THE ESTATE OF THE DECEASED AFTER THE DATE OF HIS DEATH UP TO THE DATE OF COMPLETE DISTRIBUTION IS CHARGEABLE TO TAX IN THE HANDS OF E XECUTORS ON YEAR TO YEAR BASIS. THUS INCOME OF A DECEASED FOR THE YEAR OF HIS DEATH IS BIFURCATED INTO TWO PARTS VIZ. UP TO THE DATE OF HIS DEATH W HICH IS TAXED IN THE HANDS OF LEGAL REPRESENTATIVES AND FROM THE DATE OF HIS D EATH TILL THE YEAR ENDING OR UP TO THE DATE OF COMPLETE DISTRIBUTION TO THE BENE FICIARIES WHICHEVER IS EARLIER IN THE HANDS OF THE EXECUTORS. 12. ADVERTING TO THE FACTS OF THE INSTANT CASE IT IS OBSERVED THAT THE HONBLE DELHI HIGH COURT VIDE ITS INTERIM ORDER DAT ED 17.2.1984 DETERMINED 60% SHARE AS UNDISPUTED LEAVING 40% AS D ISPUTED. ACCORDINGLY A RECEIVER WAS APPOINTED TO COLLECT RE NT FROM ALL THE TENANTS AND ALSO MAKE INVENTORY OF GOODS IN THE BUSINESS OF M/S GUPTA SPORTS HOUSE. A FINAL SETTLEMENT WAS ARRIVED AT AMONGST A LL THE FAMILY MEMBERS ITA NO.5636/DEL/2014 12 ONLY IN THE YEAR 2004. IT SHOWS THAT UP TO NOVEMBE R 2014 THERE WERE NO DETERMINED SHARES OF THE LITIGANTS IN THE HOUSE PRO PERTIES AND BUSINESS UNDER THE NAME AND STYLE OF GUPTA SPORTS HOUSE. GOING BY THE PRESCRIPTION OF SECTION 168 TOTAL INCOME FROM THE ESTATE OF LATE S HRI B.D. GUPTA EXCEPT TO THE EXTENT OF DISTRIBUTED TO OR APPLIED FOR THE BEN EFIT OF SPECIFIC LEGATEES IS REQUIRED TO BE CHARGED TO TAX IN THE HANDS OF THE E XECUTOR AND NOT THE ASSESSEE HUF. IT IS OBVIOUS THAT ONCE AN INCOME HA S ARISEN FROM THE ESTATE OF A DECEASED AND THERE ARE PROVISIONS UNDER THE AC T MANDATING THE CHARGE THEREON SUCH INCOME CANNOT GO TAX FREE. I THEREF ORE DIRECT THE AO TO TAX THE INCOME FROM THE ESTATE OF LATE SHRI B.D. GUPTA FOR THE YEAR UNDER CONSIDERATION IN TERMS OF SECTION 168 OF THE ACT. IN SO FAR AS THE ASSESSEE UNDER CONSIDERATION IS CONCERNED THERE CANNOT BE A NY INCLUSION OF BUSINESS OR INTEREST INCOME IN ITS HANDS. 13. IN THE RESULT THE APPEAL IS DISPOSED OF IN THE ABOVE TERMS. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 31 ST JULY 2015. SD/- (R.S. SYAL) ACCOUNTANT M EMBER DATED: 31 ST JULY 2015. DK ITA NO.5636/DEL/2014 13 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI