2018 (3) TMI 385 - HC - Income Tax

Non payment of admitted tax u/s 140A - real income theory - Appeal maintainable as against the original order of the Tribunal - Held that - We see from the statement of total income as filed by the assessee at Annexure-A that it was filed based on the profit estimated on the income, which would have come to the assessee, if the claims against Skyline Builders were allowed. Definitely the tax on the income can only be assessed after it comes to the hands of the assessee as per the real income theory propounded in United Commercial Bank v. Commissioner of Income Tax, 1999 (9) TMI 4 - SUPREME Court . We do not think that there is any reason to set aside the orders of the Commissioner of Income Tax (Appeals) and the Tribunal. The assessment carried out has taxed the income which came to the assessee in the relevant year.

Summary

Issues:
1. Assessment order for assessment year 1996-97.
2. Non-payment of admitted tax by the assessee.
3. Disputes with Skyline Builders affecting income estimation.
4. Appeal before the Tribunal and subsequent remand.
5. Writ petition against recovery of admitted tax.
6. Conflicting judgments by Single Judge and Division Bench.
7. Review of judgment and subsequent assessment order.
8. Rejection of rectification application by the Tribunal.
9. Estimation of net profit and tax liability in reassessment.

Issue 1: Assessment order for assessment year 1996-97

The case involves an appeal by the Revenue against the Income Tax Appellate Tribunal's order for the assessment year 1996-97. The assessee, a contractor engaged in building works, did not file a return of income due to disputes with Skyline Builders. A search was conducted, and the Assessing Officer passed an assessment order estimating the total income. Subsequent appeals and remands led to reassessment, where the net profit and tax liability were calculated based on contract receipts. The Court upheld the assessment, considering the real income theory and the income actually received by the assessee.

Issue 2: Non-payment of admitted tax by the assessee

The Commissioner of Income Tax (Appeals) rejected the assessee's appeal for non-payment of admitted tax under Section 140A. Despite the non-payment, subsequent proceedings and reassessment were conducted, leading to a demand of only a nominal amount after adjusting the refund from the earlier year. The Court considered the tax liability based on the income actually received by the assessee during the relevant year.

Issue 3: Disputes with Skyline Builders affecting income estimation

The disputes between the assessee and Skyline Builders impacted the income estimation by the Assessing Officer. The Tribunal directed a reassessment without considering the claims against Skyline Builders. The subsequent reassessment was based on the net profit from contract receipts, considering the income actually received by the assessee during the year, leading to a nominal tax demand.

Issue 4: Appeal before the Tribunal and subsequent remand

The Tribunal's initial order was remanded for fresh assessment without factoring in the claims against Skyline Builders. The subsequent reassessment considered the contract receipts and net profit, resulting in a minimal tax liability for the assessee. The Court upheld this reassessment, emphasizing the taxation of income actually received by the assessee.

Issue 5: Writ petition against recovery of admitted tax

The assessee filed a writ petition against the recovery of admitted tax, which was dismissed after a prolonged period. The Single Judge set aside the Tribunal's order but granted time to the assessee to pay the admitted tax. Subsequent judgments and reviews addressed the payment issue but did not alter the reassessment based on actual income received.

Issue 6: Conflicting judgments by Single Judge and Division Bench

The Division Bench's judgment dismissed the Income Tax Appeal as infructuous, allowing the parties to address the matter in proceedings following the reassessment. A review of a conflicting judgment absolved the assessee from making the payment directed in the writ petition but upheld the reassessment based on actual income received.

Issue 7: Review of judgment and subsequent assessment order

A review of the judgment addressed the conflicting decisions and upheld the reassessment based on the income actually received by the assessee during the relevant year. The Court considered the real income theory and rejected the appeal of the Revenue, emphasizing the taxation of actual income.

Issue 8: Rejection of rectification application by the Tribunal

The Tribunal rejected the application for rectification of errors, leading to the Revenue's appeal challenging the reassessment order. The Court rejected the contention that all grounds were taken in the appeal before the Tribunal, emphasizing the rectification of errors under Section 254 and the reassessment based on actual income received.

Issue 9: Estimation of net profit and tax liability in reassessment

The reassessment order calculated the net profit based on contract receipts and assessed the tax liability with interest under relevant sections. The Court upheld this reassessment, considering the actual income received by the assessee during the year and applying the real income theory to determine the tax liability accurately.

This comprehensive analysis of the judgment covers various issues related to the assessment, appeals, remands, payment of tax, disputes affecting income estimation, writ petitions, conflicting judgments, reviews, and rectification applications, providing a detailed understanding of the legal proceedings and decisions involved in the case.