Estate of Nalini Manilal Vs ITO (ITAT Mumbai)
The ITAT Mumbai considered an appeal by the Estate of Nalini Manilal against the order dated 27 March 2025 passed by the CIT(A) for AY 2024-25. The assessee had filed its return in the status of an Association of Persons (AOP). While processing the return, the CPC applied the maximum marginal rate (MMR), treating the assessee as an AOP. The assessee challenged the computation, contending that the estate of the deceased should be taxed at normal slab rates applicable to an individual under Section 168(1)(a) of the Income-tax Act.
The assessee submitted that the executor of the estate was a single individual, Shri Manilal Jadavji Kenia, the husband of the deceased, and relied upon Section 168 and judicial decisions concerning taxation of estates. The assessee also contended that the AOP status was used only for statistical purposes and that Section 167B should not result in taxation at the maximum marginal rate.
The Tribunal examined Section 168, which provides that income of the estate of a deceased person is chargeable to tax in the hands of the executor. Under Section 168(1)(a), where there is only one executor, taxation is to be made as if the executor were an individual. Where there are more executors than one, Section 168(1)(b) provides for treatment as an AOP.
The Tribunal examined the copy of the deceased’s Will produced before it. Clause 6 expressly appointed Mr. Manilal Jadavji Kenia as the executor of the Will and directed him to take charge of the estate. The Tribunal observed that, although it had been submitted before the CIT(A) that there were multiple executors, the relevant clause of the Will showed that Shri Manilal Jadavji Kenia was the sole executor appointed by the testatrix. On the basis of the Will, the Tribunal noted that Section 168(1)(a) would require the assessment to be made as an individual and taxed at slab rates.
However, the copy of the Will was produced as additional evidence for the first time before the Tribunal. Since the CIT(A) had not conclusively verified the applicability of Section 168(1)(a) in the absence of this documentary evidence, the Tribunal considered it appropriate to restore the matter to the CIT(A). The CIT(A) was directed to verify the authenticity and contents of the Will and determine afresh whether Section 168(1)(a) applies, after providing the assessee an adequate opportunity of hearing.
Accordingly, the grounds were restored to the CIT(A) for fresh adjudication in accordance with law. The appeal was allowed for statistical purposes. The order was pronounced in the open Court on 31 July 2025.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal has been preferred by the assessee against order dated 27.03.2025 passed by the Ld. Additional/Joint Commissioner of Income-tax (Appeals) – 1, Visakhapatnam [hereinafter shall be referred as ‘the Ld. CIT(A)’] for assessment year 2024-25, raising following grounds:
1) Under the facts and in the circumstances of the case and in law, the Assessing Officer (CPC) erred in levying Income Tax on the Total Income of the Appellant of Rs 3,02,710/- at the Maximum Marginal Rate of Tax of Rs. 94,446/ – instead of Rs. 141/ – calculated at normal slab rates applicable to the Appellant, thereby
a) Violating the Paragraph A of Part I of the First Schedule of The Finance Act, 2024 which clearly establishes that the correct rate of Tax applicable to an AOP is the Normal Rate of Tax and not the Maximum Marginal Rate (MMR) of Tax.
b) Overlooking the fact that the executors of the deceased are assessed as AOP only for statistical purpose in view of the provisions of Sec168(1) of the Act and not for the computation of tax liability.
c) Disregarding the case laws of the MP High Court and the Mumbai ITAT.
d) Disregarding the Appellate Order of the CIT(A) in the case of the Appellant for the Asst. Year 2023
2) Under the facts and in the circumstances of the case and in law, the Commissioner of Income tax (Appeals) erred in giving direction to the AO to verify the Income of the Appellant and Re-compute the Tax on the total Income of the Appellant as per the provisions of Sec. 168 and 167B of the Act, instead of only as per the provisions of Sec. 168(1) of the Act, thereby
a) Overlooking the circumstance that the PAN in the status of AOP is allotted just for satisfying the technical requirement u/s 168(1)(b) of the Act and not for the purpose of charging the tax rate at MMR.
b) Deviating from the fact that for all practical purposes, the assessment is of the deceased and the incidence of tax is on the deceased only. Section 168(2) clearly establishes that the assessment of the executor is made separately from any assessment made on him in respect of his own income and as such the provisions of Sec. 167B of the Act are not applicable in the case of the Appellant.
c) Neglecting that the Appellant is regarded as an AOP u/s 168(1)(b) merely for statistical purpose whereas for discharging the tax liability of the deceased, normal slab rates shall be levied as the deceased was an Individual on the date of the death.
d) Failing to consider the correct facts of the judgement of ITAT Mumbai in case of Estate of Late Harkishin Bhojraj Chanrai Vs. The DCIT CPC (ITA No. 2324/Mum/2021) which clearly mentions that there are two executors and just not one executor. The said case law concludes that the tax shall be charged at normal slab rates as per the First Schedule of Finance Act.
e) Not considering the judgement of Honourable MP High Court in case of CIT Vs. GBJ Sheth and Anr. [1982]1331TR192(MP) in which it was held that “though the assessment is of the executor or executors, for all practical purposes, it is the assessment of the deceased and the status of AOP is for statistical purposes.
3) Under the facts and in the circumstances of the case and in law, the wrong calculation of Tax liability at MMR has resulted into excess levy of Interest u/s 234B & 234C amounting to Rs. 10,266/-.
[B] Relief Prayed:
The appellant therefore prays, to delete the demand of Rs. 95,560/- made on account of computing the tax liability at MMR Rate including the excess levy of Interest u/s 234B & 234C instead of the normal slab rates of Income Tax as specified in Para A of Part I of the First Schedule of The Finance Act,2024 and determining refund due to the Appellant of Rs. 9,010/ -.
2. Briefly stated, the facts of the case are that upon the demise of Smt. Nalini Manilal, her estate came to be administered through the executor(s) appointed under her last will. The assessee filed its return of income in the status of an Association of Persons (AOP). While processing the said return, the Central Processing Centre (CPC) computed the tax liability by applying the maximum marginal rate (MMR), on the ground that the assessee was assessed in the capacity of an AOP.
2.1 Aggrieved, the assessee preferred an appeal before the learned CIT(A), contending that although the return was filed in the status of an AOP, the tax rate applicable ought to be the slab rate prescribed for an individual, in accordance with the provisions of Section 168(1)(a) of the Income-tax Act, 1961 (hereinafter, “the Act”). It was submitted that the executor appointed under the will was a single individual, namely, Shri Manilal Jadavji Kenia (husband of the deceased), and therefore, the estate ought to be assessed at the rates applicable to an individual. In support of this contention, the learned counsel for the assessee has placed before us a copy of the last will of Smt. Nalini Manilal.
3. We have heard rival submission of parties and perusel relevant material on record. The core issue for consideration is the applicable rate of taxation—whether the assessee, being the executor of the estate of the deceased, is liable to be assessed at the slab rate as applicable to an individual under Section 168(1)(a) of the Act, or at the maximum marginal rate as applicable to an AOP. For ready reference, it is relevant to reproduce the provision of section 168 of the Act
Executors.
92 168. (1) Subject as hereinafter provided, the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor, –
(a) if there is only one executor, then, as if the executor 93 were an individual; or
(b) if there are more executors than one, then, as if the executors were an association of persons;
and for the purposes of this Act, the executor shall be deemed to be resident or non-resident according as the deceased person was a resident or non-resident during the previous year in which his death took place.
(2) The assessment of an executor under this section shall be made separately from any assessment that may be made on him in respect of his own income.
(3) Separate assessments shall be made under this section on the total income of each completed previous year or part thereof as is included in the period from the date of the death to the date of complete distribution to the beneficiaries of the estate according to their several interests 93.
(4) In computing the total income of any previous year under this section, any income of the estate of that previous year distributed 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 legatee.
Explanation.-In this section, “executor” includes an administrator or other person administering the estate of a deceased person 94.
3.1 From the plane reading above, we find that the Section 168 of the Act governs the assessment of executors in respect of the income of the estate of a deceased person. The provision stipulates that where there is only one executor, the assessment shall be made as if the income were the income of an individual. On the other hand, where there are multiple executors, the estate may be treated as an AOP and taxed accordingly, including under the maximum marginal rate provisions, depending upon the facts. Thus examination of the will of the assessee is essential for determination of correct facts. The relevant part of the will is reproduced as under:
“1) 1, Nalini Manilal Kenia of Mumbai, Hindu inhabitant, residing at 275, J. K. House, Telang Road, Matunga East, Mumbai-400 019, do hereby revoke all my wills, codicils and testament and dispositions here before made by me and declare this is to be my last will and testament.
I have used my judgment and discretion in making this will and bequests contained therein. I am making this will in my full conscious state being aware of all my acts and the bequests contained herein have been made by me voluntarily and of my own free will accord and desire. I am in absolute good mental state and health and I am under no pressure or influence while making this will. My thinking is clear and not clouded by hatred or anger nor is my judgment of people or situations impaired while making and signing this testament disposition.
3) I am having certain investments in shares, securities, units of mutual funds, deposits, jewelry etc, I am the absolute owner of all these where my name stands first. The Joint name/s is only for the sake of convenience. These investments/assets shall be governed by the provisions of this will.
4) Whatever nominations that I may have made in respect of any of my assets are only for the sake of convenience. The nominees shall hold the asset in trust for the persons to whom the assets are bequeathed as per this will.
5) I have made this testamentary disposition to avoid any misunderstanding or disputes amongst my relatives regarding my estate and effects.
6) I hereby appoint Mr. Manilal Jadavji Kenia to be the executor of my will (hereinafter collectively referred to as “My Executor”). On my demise, I direct my executor to take charge of all my estate whatsoever and wheresoever situated and to deal with the same in the manner hereinafter appearing.
7) I declare and direct that any nomination made by me in all such investments in which my name appears first as well any other assets and/or effects are intended merely for the sake of convenience and for realization and for dealing with such assets and not with the intention of conferring any beneficial interest in favour of such nominees and/or joint holders. I declare that all such assets shall form part of estate and shall be dealt with by my executor and trustees in accordance with the provisions of this my will.
8) I declare that the bequest made in favour of my executor under this will, shall stand whether he acts as an executor or not, or having acted, retires from such office.
9) My family consists of myself and my husband Manilal Jadavji Kenia and daughter Anju Manilal Kenia.
10) I am the sole and absolute owner of immovable properties and movable properties such as shares, deposits, debentures, bonds, deposits with public provident fund, jewellery and ornaments and units. The joint names are only for the sake of convenience, and all the assets belonging to me at the time of my death shall be governed by the provisions of this will irrespective of the fact that they may be held in joint names.
11) I am entitled to make this will in respect of all of my properties.
12) I direct that my executor shall out of my estate pay all my debts and liabilities including all taxes and expenses for funeral ceremonies, probate fees, legal expenses and other court fees as may be required and also expenses for administering my estate.
13) I direct my executor to give charity as may deem fit to the status of our family Subject to the all necessary expenses for obtaining probate of my will, payment of estate duty if any, and any other incidental expenses, all of my assets/effects of whatsoever nature and wheresoever situate and whether movable or immovable property be transferred to a discretionary trust which I propose to create by this will.
The trustees of the proposed discretionary trust will be as under:
1) Manilal Jadavji Kenia
The trust shall be called “ESTATE OF NALINI MANILAL KENIA”. The trustee shall hold and stand possessed of the rest and residue of all my property of whatsoever kind and wheresoever situate (hereinafter referred to as “Trust Fund”) on terms and conditions as follows:–
a) To recover the interest, dividends and any other income of the trust fund and to pay thereout the charges for collection and all other outgoings, if any at his absolute discretion.
b) The Estate created by this will shall come to an end at the will of my Executor, from the date of my death. The said period is hereinafter to as “the date of distribution”.
c) On the date of distribution, my trustee shall transfer the corpus of the Trust Fund together with accumulation, if any, entirety to my daughter Anju Manilal Kenia.
d) I hereby expressly declare and direct that the decision of my trustee even though they may be personally interested in the application of the income, shall be final and abiding on all persons claiming under this my will and shall not be questioned in any court of law or otherwise howsoever.
e) Upon any terms and conditions whatsoever as my Trustee think fit to the intent, my trustee shall in his absolute discretion have the same full and unrestricted power of purchasing and of investing and changing and transporting any investments, lending or depositing of any money with or without any personal security with any person or company including any firm or company in which trustee may be interested as a partner or director or otherwise, as if they were absolutely entitled to the Trust Fund without being responsible or accountable for any loss or diminution in price caused by reason of such investments.
f) If the Trustee hereby appointed feels to appoint additional trustee or trustees who he is hereby authorized to do so.
g) The Trustees or trustee of these presents shall be entitled to reimburse himself or themselves and pay and discharge out of the trust fund all expenses incurred in or about the execution of the Trusts and powers of these presents.”
3.2 In the present case, although it was submitted before the CIT(A) that there were multiple executors, but from the relevant clauses no. 6 of the will as extracted above, it is evident that Shri Manilal Jadavji Kenia was the sole executor appointed by the testatrix, which conclusively establishes that only one executor was appointed. In such circumstances, and in light of the plain language of Section 168(1)(a) of the Act, the assessment is required to be made in the status of an individual and taxed accordingly at slab rates.
3.2 However, since the copy of the will constitutes additional evidence placed for the first time before us, and the issue as to the applicability of Section 168(1)(a) was not conclusively verified by the CIT(A) in the absence of such documentary proof, we deem it appropriate, in the interest of justice, to restore the matter to the file of the learned CIT(A) for a fresh adjudication. The CIT(A) shall verify the authenticity and content of the will, and determine afresh whether the provisions of Section 168(1)(a) are applicable, after affording adequate opportunity of hearing to the assessee.
3.3 Accordingly, the grounds raised in the present appeal are restored to the file of the learned CIT(A) for decision afresh, in accordance with law.
4. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 31/07/2025.
