COMMISSIONER OF INCOME TAX ROHTAK vs. KAMLESH

Whether on the facts and circumstances of the case and in law, the ld. ITAT was right in giving a finding that the profit of the assessee should be restricted to 8% of the receipts from M/s PACL India Ltd., New Delhi, whereas the income received by the assessee is not related to contract receipts and the entire receipts are liable to be taxed.” The assessees in the present cases, had filed return of income under the head 'Income from business or profession' after applying the provisions of Section 44-AD of the Income Tax Act, 1961 (for short 'the Act'). However, during the course of assessment proceedings, it was found that the assessees have not done any contract work of PACL India Limited. Since no work has been done by the assessees, therefore, no expense can be allowed. Thus, the receipts of the assessees from PACL India Limited were treated as income of the assessees under the head 'Income from business or profession' on protective basis. Such order passed by the Assessing Officer was challenged before the Commissioner of Income Tax (Appeals), Rohtak. Commissioner of Income Tax (Appeals) returned a finding that the amounts of receipts appearing in the bank accounts, are not from the contract business. The assessees have shown net profit @ 8% of the receipts. Therefore, the income deserves to be assessed at 8% of the receipts because the assessees must not have allowed their name to be used without any consideration. It was held that such income to be assessed -5- as income from other sources and credit of tax deduction source be given. In further appeal by the assessees before the Tribunal, the Tribunal returned a finding that if the Assessing Officer was of the view that no work has been done by any of the contractor, the amount received itself cannot be considered to be income of the assessees but only the profit from such receipts can be brought to tax. The assessees herein being found to be name lenders could have charged only the commission for lending the name. Therefore, the income of the present assessees are only to the extent of receiving commission. Since all these persons have offered 8% of their income, no further amount is taxable. Learned counsel for the revenue has vehemently argued that the substantive assessment of PACL India Limited is still pending before the Tribunal, therefore, protective assessment in the hands of the assessees should not have been finalized. Having heard learned counsel for the parties, we do not find that any substantial question of law arises for consideration. On account of the finding recorded by the Tribunal, the amount disclosed by the assessees as their income has been assessed to tax as income in terms of Section 44-AD of the Act. If in the proceedings against PACL India Limited, a finding is recorded that the transactions were not genuine, then the same would be liable to be added back to the income of PACL India Limited but if finding is recorded that the transaction is genuine, the order of assessment passed by the Tribunal would require no interference so far as the assessees in the present appeal are concerned. The finalization of the assessment -6- proceedings against the assessees has, thus, no effect in respect of the assessment of PACL India Ltd. In view of the above, we do not find that any substantial question of law arises for consideration by this Court in the present appeals. Consequently, the appeals are dismissed. (HEMANT GUPTA)