While setting aside the order passed by ITAT Hon’ble HC held that tax can be levied on real income not on hypothetical income. Realization of some entries is doubted and such entries can not constitute a valid levy of tax.
No new facts or material had come to the knowledge of the Assessing Officer to enable him to initiate re-assessment proceedings. All the material facts on which the Assessing Officer had based his purported reasons were available on record at the time when the original assessment order was passed.
Brief facts are that the assessee was registered as trust on 01.02.2001.Its application for registration as a charitable trust was granted on 27.12.2001. On 30.06.2002 the assessee received the IILM Undergraduate Business School,from the Ram Krishna and Sons Charitable Trust (RKSCT).
In our opinion since the assessed did not debit the amount to the Profit & Loss Account as an expenditure nor did the assessed claim any deduction in respect of the amount and considering that the assessed is following the mercantile system of accounting, the question of disallowing the deduction under section 43B not claimed would not arise.
While executive action resulted in his passport being unjustifiably impounded, this rendered if impossible for the assessee to leave India. He virtually became an unwilling resident on Indian soil without his consent and against his will.
The only question here is whether reasons could at all be recorded after issuance of the notice under Section 148 of the Act. And, secondly, that as the reasons were recorded after the issuance of Section 148 notice, whether the proceedings were not vitiated.
Reliance in this regard can be placed on the decision of Hon’ble Delhi High Court in case of Pepsi Foods Private Limited vs. ACIT [W.P.(C) 1334/2015] pronounced on 19-05-2015 wherein the petitioner has challenged the constitutional validity of Section 254(2A) of the Income Tax Act, 1961 (here-in-after referred to as ‘the Act’).
The petitioner was a firm of auditors. During the course of search and seizure operations conducted against EMAAR, the laptop computers of two employees of the petitioner, who were conducting an audit of EMAAR, were seized by the Deputy Director.
In the absence of any specific provision under which the so called notional income on advances, could be brought to tax, we do not see as to how the impugned orders passed by the Commissioner of Income Tax can be sustained.
There is nothing in Section 80I(2)(iv) to say that the relationship in order to qualify for the term employment must be one of master and servant and cannot extend to contractual employment. That the concept of permanent or direct workmen is the precondition envisioned in Section 80I(2) when it was the term employs does not appear to be reflected in the statute.
