( 1 ) PETITIONERS in these petitions challenge the notices under Sec. 263 of the income-Tax Act, 1961 (hereinafter referred to as "the Act"), inter alia, contending that the trust is not an Association of persons, but is an individual and, therefore, the Assessing officer has assessed the tax in accordance with law and the issuance of the notices under sec. 263 is contrary to the provision of law and not in consonance with the decision rendered by this court in the case of C. I. T. vs. Deepak Family Trust No. 1 (211 ITR 575) and by the Calcutta High Court in the case of in C. I. T. vs. Shri Krishna Bandar Trust (201 itr 989 ).

( 2 ) IN all these petitions, there is a common point and at the request of the learned advocates, we have disposed of these matters by a common judgment.

( 3 ) WE have taken the facts from Spl. C. A. No. 829 of 1996, which are as under:petitioner-ASSESSEE is a private discretionary trust. The beneficiaries of the said trust are individuals. For the assessment year 1993-94, assessee submitted its return in the status of an individual, disclosing therein the long term capital gain. The Assessing officer charged tax on the said capital gain at 20% in accordance with the provisions of sec. 112 (1) (a) (ii) of the Act on 28. 3. 1994, a copy of which is annexed to the petition. The Commissioner of Income tax on 29. 1. 1996 issued notice under Sec. 263 of the Act, indicating that the trust is an Association of persons and that the Assessing Officer has charged tax on long term capital gain at the rate of 20% instead of 30% applicable to assessees other than individual and HUF erroneously, which is also prejudicial to the interest of the Revenue.

( 4 ) MR. Shelat, learned counsel appearing for the Revenue submitted that a show cause notice has been isued and the court should not interfere at this stage, as the commissioner of Income-tax is going to decide the matter after considering objections that may be raised by the assessee. He further submitted that had it been the contention that the petitioner is entitled to benefit claiming as an individual under Sec. 80-L of the act, then it can be said that the case is covered by the judgments referred to hereinabove, but in the instant case, the question is of determination of tax in special cases as found in chapter, XII of the Act. Sec. 112 of the Act pertains to tax on long term capital gains. Said section reads as under:"112. (1) Where the total income of an assessee includes any income, arising from the transfer of a long term capital asset, which is chargeable under the head "capital Gains", the tax payable by the assessee on the total income shall be the aggregate of (a) in the case of an individual or a Hindu undivided family, (i) the amount of income-tax payable on the total income as reduced by the amount of such long-term capital gains, had the total income as so reduced been his total income; and (ii) the amount of income-tax calculated on such long-term capital gains at the rate of twenty per cent; provided that where the total income as reduced by such long-term capital gains is below the maximum amount which is not chargeable to income-tax, then, such long-term capital gains shall be reduced by the amount by which the total income as so reduced falls short of the maximum amount which is not chargeable to income-tax and the tax on the balance of such long-term capital gains shall be computed at the rate of twenty per cent; (b) in the case of a company (i) the amount of income-tax payable on the total income as reduced by the amount of such long-term capital gains, had the total income as so reduced been its total income; and (ii) the amount of income-tax calculated on such long-term capital gains at the rate of forty per cent; provided that. in relation to long-term capital gains arising to a venture capital company from the transfer of equity shares of venture capital undertakings, the provisions of Sub-clause (ii) shall have effect as