TaxTMI 
TaxTMI 
2018 (7) TMI 1399
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....his appeal by the assessee. The assessee has filed a petition for condonation of delay. We have heard the Ld. representative for the assessee and the Ld. D.R. We find that there was sufficient cause for not filing the appeal before the stipulated time. Therefore, we condone the delay and admit the appeal. 3. The only issue arises for consideration is with regard to addition of Rs. 1,09,78,005/- under the head "Income from Salary". 4. Shri J. Prabhakar, the Ld. representative for the assessee, submitted that the assessee is the Managing Director of M/s Mohan Breweries And Distilleries Limited. According to the Ld. representative, the assessee has disclosed Rs. 27,76,011/- towards salary from M/s Mohan Breweries And Distilleries Limited....
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....ed as income of the assessee. On a query from the Bench whether the company has initiated any recovery proceeding for excess amount paid to the assessee? The Ld. representative submitted that the assessee has paid lot of money to the company, therefore, by way of book adjustment, the amount was recovered. 6. On the contrary, Shri Asish Tripathy, the Ld. Departmental Representative, submitted that the assessee admittedly received Rs. 1,37,52,396/-. Subsequently, according to the Ld. D.R., the assessee claimed that the company revised his salary in view of the provisions of the Companies Act which prohibits payment exceeding 5% of net profits of the company. According to the Ld. D.R., what was paid to the assessee was not recovered by the ....
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....during such year ; or (c) accrues or arises to him outside India during such year : Provided that in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6, the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India. (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which- (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or (b) accrues or arises or is deemed to accrue or arise to him in India....
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....n the basis of the provisions of Companies Act restricting the salary to 5% of the net profits of the company. The question arises for consideration is whether the so-called excess payment of Rs. 1,09,78,005/- would form part of taxable income of the assessee? 10. Even though the Ld. representative for the assessee claims that recovery adjustment was made in the books regarding excess payment, no material is available on record showing that the book entry has been made adjusting the amount in the company account. Since the required material was not filed either before the Assessing Officer or before the CIT(Appeals) or even before this Tribunal, mere oral claim that the amount was adjusted by way of book entry cannot be accepted at this ....