Section 5 of the Income Tax Act

Income-tax Act, 2025: s.5

Section 5 of the Income-tax Act, 1961 corresponds to section 5 (Scope of total income) of the Income-tax Act, 2025.

Read section 5 of the 2025 Act

Correspondence checked against the ICAI tabular mapping of the two Acts and the BharatTax.co section commentary.

The decision most relied on for Section 5 is Balakrishnan v. M. Krishnamurthy (7 SCC 123), cited in 368 of the 847 judgments on BharatTax that turn on this section.

Leading authorities on Section 5

Balakrishnan v. M. Krishnamurthy
7 SCC 123 · 1998 · Supreme Court
368
citing judgments

The Supreme Court outlines the principles for condoning delay in filing appeals, stating that a litigant's lapse is not always a bar if the explanation is bona fide and not a dilatory strategy. Courts should show utmost consideration to suitors and prioritize substantial justice unless the delay is deliberately to gain time.

DIT v. Morgan Stanley & Co.
292 ITR 416 · 2007 · Supreme Court
360
citing judgments

A Permanent Establishment (PE) signifies a foreign enterprise's virtual projection into another country, with a fixed place PE existing where an MNE's business is wholly or partly carried on. A dependent agent PE requires the agent to act as such and/or have the authority to conclude contracts for the foreign enterprise under DTAA provisions.

Smt. Tarulata Shyam v. CIT
108 ITR 345 · 1977 · Supreme Court
209
citing judgments

Taxing statutes must be interpreted strictly, assuming that the law-making authority does not commit a mistake or make an omission. There is no room for purposive interpretation under direct tax laws.

CIT v. Lakhani Marketing Inc.
49 Taxmann.com 257 · 2014 · High Court
145
citing judgments

Disallowance under Section 14A of the Income Tax Act, 1961, cannot exceed the actual tax-exempt income earned by the assessee during the relevant year. If no tax-exempt income is earned, no disallowance under Section 14A is warranted.

Parimisetti Seetharamamma v. CIT
57 ITR 532 · 1965 · Supreme Court
142
citing judgments

Not all receipts constitute income chargeable to tax. An Assessing Officer cannot reject a prima facie reasonable explanation on mere probabilities or arbitrary grounds, but must disprove facts.

CIT v. Holcim India (P.) Ltd.
57 Taxmann.com 28 · 2015 · High Court
138
citing judgments

Disallowance under Section 14A applies only when exempt income is actually received or receivable during the relevant previous year. The provision does not trigger merely upon incurring expenditure if no exempt income materialized in that year.

CIT v. Maharashtra Sugar Mills Ltd.
82 ITR 452 · 1971 · Supreme Court
109
citing judgments

Expenditure incurred by an assessee carrying on a composite business giving rise to both taxable and non-taxable income is allowable in its entirety without apportionment. This principle led to the subsequent introduction of Section 14A of the Income-tax Act.

Keshav Mills Ltd. v. CIT
23 ITR 230 · 1953 · Supreme Court
86
citing judgments

Income taxability depends on the real nature of the receipt and actual or constructive receipt of income, not merely on book entries. An amount is only "deemed to be received" if explicitly provided by the Income Tax Act, not by an assessee's unilateral intention.

Vaijayantabai Baburao Patil v. Shantaram Baburao Patil
122 Taxmann 114 · 2002 · Supreme Court
63
citing judgments
Nortel Networks India International Inc. v. DIT
386 ITR 353 · 2016 · High Court
61
citing judgments

The burden of proving the existence of a Permanent Establishment (PE) under a Double Taxation Avoidance Agreement (DTAA) rests squarely on the Income Tax Department.

Judgments on Section 5

Deepak Switch Gears Pvt. Ltd., Kolkata vs. PCIT, Asansol

In the result, the appeal of the assessee stands allowed

ITA 809/KOL/2023[2012-13]Status: DisposedITAT Kolkata07 May 2024AY 2012-13

Bench: Shri Sanjay Garg & Dr. Manish Boradi.T.A. No.809/Kol/2023 Assessment Year: 2012-13 Deepak Switch Gears Pvt. Ltd….…......................…...……………....Appellant 48/6, Suman Villa, 2Nd Floor, 155, Jessore Road, Kolkata-700055. [Pan: Aabcd1131H] Vs. Pcit, Asansol….....….........................................................…..…..... Respondent Appearances By: Shri A. K. Tibrewal, Ar, Appeared On Behalf Of The Appellant. Shri Abhijit Kundu, Cit-Dr, Appeared On Behalf Of The Respondent. Date Of Concluding The Hearing : April 08, 2024 Date Of Pronouncing The Order : May 07, 2024 आदेश / Order संजय गग", "या"यक सद"य "वारा / Per Sanjay Garg: The Present Appeal Has Been Preferred By The Assessee Against The Revision Order Dated 30.12.2022 Of The Principal Commissioner Of Income Tax, Kolkata [Hereinafter Referred To As ‘Pr. Cit’] Passed U/S 263 Of The Income Tax Act (Hereinafter Referred To As The ‘Act’). The Assessee In This Appeal Has Agitated Against The Action Of The Pr. Cit In Exercising His Revision Jurisdiction U/S 263 Of The Act & Thereby Directing The Assessing Officer To Frame The Assessment Afresh. 2. The Registry Has Pointed Out That The Appeal Is Time-Barred By 158 Days. A Separate Application Of Condonation Of Delay Has Been Filed, Wherein, It Has Been Pleaded That After Receipt Of The Impugned Order Of The Pr. Cit, The Assessee, Through Its Director, Shri Deep Kishan Saraf, Immediately Approached One Shri Pawan Kumar Agarwal, Chartered

Section 253Section 263Section 5

Rajat Dhara, Kolkata vs. D.C.I.T., Circle-2(1), Kolkata

In the result, the appeal of the assessee stands partly allowed

ITA 1914/KOL/2019[2016-17]Status: DisposedITAT Kolkata19 Feb 2024AY 2016-17

Bench: Shri Sanjay Garg & Shri Rajesh Kumari.T.A. No.1914/Kol/2019 Assessment Year: 2016-17 Rajat Dhara............................................................…………………….……Appellant C/O Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2Nd Floor, Kolkata-700069. [Pan: Abqpd1200L] Vs. Dcit (I.T), Circle-2(1), Kolkata...…….…..….........…........……...…..…..Respondent Appearances By: Shri Siddharth Agarwal, Advocate, Appeared On Behalf Of The Appellant. Shri Ankur Goyal, Jcit- Sr. Dr, Appeared On Behalf Of The Respondent. Date Of Concluding The Hearing : January 10, 2024 Date Of Pronouncing The Order : February 19, 2024 Hearing Through Video Conferencing Order Per Sanjay Garg: The Present Appeal Has Been Preferred By The Assessee Against The Order Dated 24.06.2019 Of The Commissioner Of Income Tax (Appeals)-22, Kolkata [Hereinafter Referred To As ‘Cit(A)’] Passed U/S 250 Of The Income Tax Act (Hereinafter Referred To As The ‘Act’). 2. The Appeal Of The Assessee Was Earlier Decided By The Order Of The Tribunal Dated March 02, 2022, However, The Revenue Moved An M.A No.35/Kol/2022 Stating Therein That A Mistake Apparent On Record Has Occurred In The Order Of The Tribunal Dated 02.03.2022. Therefore, Vide Order Dated 15.12.2023 Passed In M.A No.35/Kol/2022, The Final Order Dated 02.03.2022 Passed In Ita No.1914/Kol/2019 Was Recalled. The Appeal Has Been Heard Afresh. 3. The Assessee In This Appeal Has Taken The Following Grounds Of Appeal:

Section 250Section 5Section 5(1)Section 90