आयकर अपीलीय अधिकरण ' ' , कोलकाता सी पीठ कोलकाता म IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘C’ BENCH, KOLKATA , श्री प्रदीप कु मार चौबे न्याधयक सदस्य एवं , श्री राके श धमश्रा लखे ा सदस्य के सम Before SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER &

SHRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. No.: 1613/KOL/2024 Assessment Year: 2021-22 Pradyumna Dalmia Beneficiary ADIT(CPC), Bengaluru Trust Vs.

(Appellant) (Respondent)

PAN: AACTP6421C Appearances:

Assessee represented by : S. Jhajharia, FCA.

Department represented by : S.B. Chakraborty, Sr. DR, JCIT.

Date of concluding the hearing : 12-June-2025 Date of pronouncing the order : 11-August-2025

ORDER

PER RAKESH MISHRA, ACCOUNTANT MEMBER:

This appeal filed by the assessee is against the order of the Addl/JCIT(A)-1, Lucknow [hereinafter referred to as Ld. ‘Addl/JCIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2021-22 dated 25.07.2024, which has been passed against the intimation order u/s 143(1) of the Act, dated 13.10.2022.

2. The assessee is in appeal before the Tribunal raising the following grounds of appeal:

“1. For that in the facts and circumstances of the case, the Ld. CIT(A) erred in upholding the order of the Ld. AO in calculating surcharge at the rate of

37% on a total income of Rs. 3.04 crores.

2. For that in the facts and circumstances of the case, the Ld. CIT(Appeals) erred in upholding the order of the Ld. Assistant Director of Income Tax, CPC in levying surcharge at the rate of 37% whereas the income of the assessee attracts surcharge of 25% between 2 to 5 crores.

3. That the appellant craves leave to add, alter, amend and/or modify any of the grounds of appeal at or before the hearing of the appeal.”

3. Brief facts of the case are that the assessee had filed the return of income for AY 2021-22 showing total income of ₹3,04,31,120/- which was processed u/s 143(1) of the Act and a demand of ₹7,95,100/- was raised. Aggrieved with the intimation, the assessee filed an appeal before the Ld. Addl/JCIT(A). The only ground of appeal raised was that the surcharge levied @ 37% should be reduced to 25% as the income of the assessee was between ₹2 and ₹5 Crore. Before the Ld. Addl/JCIT(A), the assessee had relied upon the following judicial pronouncements:

i) CIT v. Shri Krishna Bhandar Trust 201 ITR 989 (Calcutta High Court) [1993]

ii) Nizam's Family Trust 108 ITR 555 (Supreme Court)

iii) LR Patel Family Trust v. ITO 262 ITR 520 (Bombay High Court) iv) CIT V S.A.E. Head Office Trust 271 ITR 159 (Delhi High Court)

v) DIT V. Shardaben Maftalal Trust 247 ITR 1 (Bombay High Court)

4. The Ld. Addl/JCIT(A) examined the matter. It was argued before the Ld. Addl/JCIT(A) that the surcharge should be levied on the basis of the income and written submissions were filed relying upon the following decisions:

i) The Hon'ble Supreme Court in Commissioner of Wealth Tax vs. Trustees of H. E. H. Nizam's Family (Remainder Wealth) Trust (1977) (108 ITR 555)

ii) The Hon'ble Calcutta High Court in CIT vs. Shri Krishna Bandar Trust (1993)

(201 ITR 989)

iii) The Hon'ble Bombay High Court in DIT (Exemptions) Vs. Shardaben Bhagubhai Mafatlal Public Charitable Trust (2001) (247 ITR 1)

iv) The Hon'ble Bombay High Court in L.R. Patel Family Trust vs. ITO (2003)

(262 ITR 520)

v) The Hon'ble Delhi High Court in CIT vs. SAE Head Office Monthly Paid Employee Welfare Trust (2004) (271 ITR 159)

5. The assessee had claimed that the surcharge should be levied depending upon the income of the assessee and not on the basis of the tax rate applied, which was maximum marginal rate of tax as the assessee was a private discretionary trust. The Ld. Addl/JCIT(A)

dismissed the appeal of the assessee by holding as under:

“6.1 The statement of facts, grounds of appeal, and the order appealed against, and submissions of the appellant have been thoroughly examined. All the grounds of appeal are related to the issue of levying of surcharge at the rate of 37% amounting to Rs. 25,16,887/- on the total