Income Tax Appellate Tribunal - Patna
Manish Shivsay,Nawada vs Income Tax Officer, Ward- 2(3), ... on 27 March, 2026
IN THE INCOME TAX APPELLATE TRIBUNAL
"PATNA BENCH, PATNA
VIRTUAL HEARING AT KOLKATA
Before Shri Laxmi Prasad Sahu, Accountant Member
and Shri Sonjoy Sarma, Judicial Member
I.T.A. Nos.525/Pat/2025 & 526/Pat/2025
Assessment Years: 2016-17 & 2017-18
Manish Shivsay...........................................................Appellant
Sunil Medical Hall, Main Road,
Nawada, Bihar-805110
[PAN No. BQWPK1497C]
vs.
ITO, Ward-2(3), Biharsharif ............................................Respondent
Appearances by:
Shri Abhi Sarkar, AR, appeared on behalf of the Appellant.
Shri Manab Adak, JCIT, DR, appeared on behalf of the Respondent.
Date of concluding the hearing : March 24, 2026
Date of pronouncing the order : March 27, 2026
ORDER
Per Sonjoy Sarma, Judicial Member:
These two appeals are filed by the same assessee is directed against the orders of the NFAC, Delhi (hereinafter referred to as "the Ld. CIT(A)"), both dated 22.08.2025 for the assessment year 2016-17 and 2017-18 respectively, passed under u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as "the Act").
2. Since the issues involve in these appeals are identical except the variations in figures and assessment year. Both the appeals were heard together and are being disposed of by this common order. For the sake of convenience and brevity, for the purpose of adjudication, first, we take up ITA No.525/Pat/2025 as a lead case, and our findings therein shall ITA No.525 & 526 /Pat/2025 Manish Shivsay apply mutatis mutandis to the ITA No.526/Pat/2025 for the assessment year 2017-18 also.
3. Brief facts of the case are that, the assessee is an individual derive income from various sources, and filed its return of income, declaring total income of Rs.8,18,840/- which was processed u/s 143(1) of the Act. Subsequently, the case of the assessee was reopened u/s 147 of the Act and notice u/s 148 was issued, on the ground that assessee had received income in the nature of salary but had treated the same as professional receipts and claim expenses amounting to Rs.56,535/- thereby, reducing the taxable income. In response to the notices, assessee filed return of income declaring the same income as originally returned and objected to the reopening contending that proceedings were initiated merely on change of opinion, based on the same set of facts already available on the record. However, the Assessing Officer completed the assessment u/s 147 r.w.s144B of the Act by disallowing the expenses of Rs.56,535/- and treating the receipt as salary income, thereby, determining the total income at Rs.8,75,375/-.
4. Aggrieved by the above order, assessee preferred an appeal before the Ld. CIT(A), where the appeal of the assessee was dismissed and sustained the order of the Assessing Officer.
5. Dissatisfied with the above order, assessee is in appeal before this Tribunal, stating that the assessee was not an employee but was engaged in providing consultancy services of a technical nature. The assessee is also rendering the services such as training of staffs and advisory function on consultancy services not as a salaried employee of the concerned. The Ld. AR stated that there was employer-employee relationship, as no appointment letter was issued, no Form No.16 was provided, no fixed salary structure was existed. Therefore, the findings 2 ITA No.525 & 526 /Pat/2025 Manish Shivsay of the authorities below were not correct. He further stated that the Assessing Officer erroneously treated the receipt as salary without examining the nature of services and without appreciating the factual position. He further stated that the assessment was completed without prior verification of the facts and without granting adequate opportunity to the assessee to substantiate his claim. Accordingly, he prayed that the matter to be restored to the file of the Assessing Officer for fresh examination.
6. On the other hand, the Ld. DR supported the decision of the authorities below and submitted that the assessee has failed to substantiate his claim without supporting evidence.
7. We have heard the rival submission of the parties and perusing the materials available on record, in the present case of the assessee the core issue is whether, the income earned by the assessee is to be assessed under the head to salary or income from profession. From the perusal of the record, it is observed that no documentary evidence such as employment agreement, consultancy agreement or nature of engagement has been placed on record. There is no clarity regarding the relationship between the assessee and the payer. The Assessing Officer while passing the assessment order treated the income of the assessee as salaried, primarily based on own assessment without being conclusive evidence on record. Similarly, the assessee has also failed to furnish sufficient evidence to establish that income which derive from profession or technical services. Thus, issue has not been properly examined neither of the authorities below nor the Assessing Officer. In our considered view, the determination of whether a receipt is salary or professional income requires the detailed examination of the fact such as nature of duties performed by the assessee, terms and 3 ITA No.525 & 526 /Pat/2025 Manish Shivsay conditions of the engagements, existence of employer-employee relationship, mode of payment and control exercised by the payer. In absence of such examination, issue cannot be conclusively adjudicated at this stage considering the totality of the fact. In the interest of justice and fair play, we deem it appropriate to set aside the matter to the file of Assessing Officer for fresh adjudication. The Assessing Officer shall examine the nature and relationship between the assessee and the payer, verify the relevant documents such as agreement invoices, correspondence entry providing adequate opportunity of being heard to the assessee and passed a speaking order, in accordance with law. The assessee is also directed to cooperate and furnish necessary documents to substantiate its claim.
8. In terms of the above, appeal of the assessee is allowed for statistical purposes and since the fact and issues involved in the ITA No.525/Pat/2025 are identical to the ITA No.526/Pat/2025. Our findings and directions given therein shall apply mutatis mutandis to the said appeal as well.
9. In the result, ITA No.525/Pat/2025 and ITA No.526/Pat/2025 are allowed for statistical purposes.
Kolkata, the 27th March, 2026.
Sd/- Sd/-
[Laxmi Prasad Sahu] [Sonjoy Sarma]
Accountant Member Judicial Member
Dated: 27.03.2026.
DP, PS
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ITA No.525 & 526 /Pat/2025
Manish Shivsay
Copy of the order forwarded to:
1. Appellant -
2. Respondent -
3. CIT(A)-
4. CIT-
5. CIT(DR)
//True copy//
By order
Assistant Registrar, Kolkata Benches
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