9911796707
TMI Blog2018 (3) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year of the assessment year 1996-97, the assessee had undertaken works at the sites of Skyline Builders. There arose disputes with the Skyline Builders which led to the assessee filing a suit claiming certain amounts. Since disputes were pending, the assessee did not file return of income for the assessment year. A search was conducted under Section 133A of the Income Tax Act, 1961 ('Act', for short) in the business premises on 24.9.1996 and since no return of income was filed within the stipulated date of 31.8.1996, notice under Section 142(1) of the Act was issued. The assessee filed a return disclosing an income of Rs. 6,08,680/- but without making payment of the admitted tax. The explanation of the assessee was that the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s produced before the learned Single Judge, the learned Single Judge invoked Article 227 of the Constitution of India and set aside the Tribunal's order finding that it is non est in law. Despite that, the learned Single Judge granted time to the assessee to pay the admitted tax, upon which the Commissioner of Income Tax (Appeals) was also directed to re-consider the issue. 4. Later, the Income Tax Appeal (ITA No.91/2007) came before a Division Bench of this Court in which Annexure-E judgment was passed. In Annexure-E judgment, it was noticed that the order remanding the matter, was complied with. There was an assessment made as per Annexure-H dated 11.1.2006. Hence, on 27.1.2009, the Income Tax Appeal was dismissed as infructuous and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one (see Nibaran Chandra Sikdar v. Abdul Hakim [AIR 1928 Cal 418], Kanhaiya Lal v. Baldeo Prasad [ILR (1906) 28 All 240], Brijbasi Lal v. Salig Ram [ILR (1912) 34 All 282] and Pyari Mohan Kundu v. Kalu Khan [ILR (1917) 44 Cal 1011 : 41 IC 497]). 7. Kunhayammed (supra) is an authority for the principle of merger, insofar as the dismissal of a Special Leave Petition not being affirmation of the principles of the impugned judgment and even a mere rejection of the Civil Appeal resulting in merger making the principles as laid down by the High Court being that of the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the Honourable Supreme Court in United Commercial Bank v. Commissioner of Income Tax, [1999] 240 ITR 355. In such circumstances, 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. In the above facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
