TaxTMI 
TaxTMI 
2017 (4) TMI 764
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....CBDT instruction No.21 of 2015, dated 10/12/2015 (F No.279/Misc./142/ 2007-IT(PT) is applicable, wherein, the Department was advised/directed by the Board not to file appeal in the cases where the tax effect does not exceed the following monetary limit.:- Sl. No. Appeals in Income -tax matters Monetary Limit (in Rs.) 1. Before ITAT 10,00,000/- 2. U/s 260 A before Hon'ble High Court 20,00,000/- 3. Before Hon'ble Supreme Court 25,00,000/- In view of the above instruction, since, the tax effect is less than Rs. 10,00,000/-, consequently, the appeal of the Revenue is not maintainable, therefore, dismissed. Finally, the appeal of the Revenue is dismissed as not maintainable. 5. Now we shall take up ITA No.4135/Mum/2015 (A.Y.2009-10). The learned Counsel explained that income was offered in the next year whereas the Assessing Officer assessed in this year. Our attention was invited to page.9 of the impugned order by placing reliance upon the decision from Hon'ble Apex Court in CIT vs Excel Industries Ltd., (38 Taxmann 100) (SC). It was also explained that the tax rate in both the years is the same, therefore, there is no loss to ....
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....such a benefit was examined only with reference to Section 28(iv) of the Act but "in the present case the taxability of such benefit is to be examined from all possible angles as it forms part of the profits and gains of business according to the ordinary principles of commercial accounting." 8. The assessee took up the matter in appeal and by an order dated 15th September 2008 the Commissioner of Income Tax (Appeals) referred to an earlier appellate order in the case of the assessee relevant to the assessment years 1999-2000 and 2000- 01 and following the conclusion arrived at in those assessment years, the appeal was allowed and it was held that the advance licence benefit receivable amounting to Rs. 12,57,525/- and duty entitlement pass book benefit of Rs. 4,46,46,976/- ought not to be taxed in this year. Reliance was also placed on the order of the Income Tax Appellate Tribunal in the assessee's own case for the assessment year 1995-96. 9. Feeling aggrieved, the Revenue preferred a further appeal before the Income Tax Appellate Tribunal (for short 'the ITAT) which referred to the issues raised by the Revenue and by its order dated 29th April 2011 dismissed the appeal upho....
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....ot, arising from business or the exercise of a profession; ..............." 17. First of all, it is now well settled that income tax cannot be levied on hypothetical income. In Commissioner of Income Tax v. Shoorji Vallabhdas and Co., [1962] 46 ITR 144 (SC) it was held as follows:- "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping, an entry is made about a 'hypothetical income', which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account." 18. The above passage was cited with approval in Morvi Industries Ltd. v. Commissione....
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....ein it was held, after referring to Morvi Industries that real accrual of income and not a hypothetical accrual of income ought to be taken into consideration. For a similar conclusion, reference was made to Poona Electric Supply Co. Ltd. v. Commissioner of Income Tax, [1965] 57 ITR 521 (SC) wherein it was held that income tax is a tax on real income. 25. Finally a reference was made to State Bank of Travancore v. Commissioner of Income Tax, [1986] 158 ITR 102 (SC) wherein the majority view was that accrual of income must be real, taking into account the actuality of the situation; whether the accrual had taken place or not must, in appropriate cases, be judged on the principles of real income theory. The majority opinion went on to say: "What has really accrued to the assessee has to be found out and what has accrued must be considered from the point of view of real income taking the probability or improbability of realisation in a realistic manner and dovetailing of these factors together but once the accrual takes place, on the conduct of the parties subsequent to the year of closing an income which has accrued cannot be made "no income". 26. This Court then considered ....
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....ion of an issue for a subsequent assessment year if the same "fundamental aspect" permeates in different assessment years. In arriving at this conclusion, this Court referred to an interesting passage from Hoystead v. Commissioner of Taxation, 1926 AC 155 (PC) wherein it was said: "Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse whic....