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Remuneration from partnership not ‘Gross Receipt’ for purpose of Audit u/s 44AB of IT Act

Cause Title : Perizad Zorabian Irani V/s. Principal Commissioner of Income-Tax (Central)-1 Mumbai & Ors, Writ Petition No.1333 Of 2021, Bombay High Court

Date of Judgment/Order : 9th March 2022

Corum : K.R. Shriram & N.J. Jamadar, JJ

Citied: 

Background

Petitioner is an individual deriving her income under the heads salary, income from house property, business / profession and income from other sources. Petitioner is an Actor by profession. Petitioner also is a partner in two partnership firms namely M/s Zorabian Sales and Marketing and M/s Zorabian Foods.

Petitioner filed her return of income for A.Y.-2017-2018 under Section 139(1) of the Act declaring total income of Rs.1,75,88,360/-. Out of this total income, a sum of Rs.1,09,65,411/- was declared under the heads of business and profession. Out of Rs.1,09,65,411/-, petitioner derived a sum of Rs.8,45,220 as net income from petitioner’s acting profession and Rs.1,01,20,191/- as remuneration received as working partner from the firm M/s Zorabian Sales and Marketing.

The Income tax dept. declared the return of income filed by petitioner as invalid due to non auditing of accounts as required under Section 44AB of the Act. Revision application filed by the Petitioner was rejected.

In the appeal before the High Court, the Petitioner  argued that provisions of Section 44AB are not applicable to the facts of the present case because: (a) the business is carried on by the partnership firm and not the assessee, (b) becoming the partner of partnership cannot be construed as carrying on business, (c) partners’ remuneration cannot be construed as total sales turn over or gross receipts in business, (d) partners’ remuneration does not arise out of carrying on profession, (e) partners’ remuneration cannot be construed as gross receipts from profession and (f) Section 44AB is not applicable where assessee is carrying on a profession as well as business simultaneously in different field.


Judgment

Referring to the judgment of the the judgment of Madras High Court in Anandkumar Vs. Assistant Commissioner of Income Tax, the Bombay High Court held that the provision applicable to petitioner is clause (b) of Section 44AB which provides, every person carrying on profession shall, if his gross receipts in profession exceed fifty lakh rupees in any previous year, get his accounts of such previous year audited by an accountant before the specified date and furnish by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. Profession is defined under Section 2(36) of the Act as under: “Profession includes vocation”. The income earned by petitioner as remuneration received as working partner or partners’ remuneration, cannot be held as carrying on profession as well as business simultaneously in different field. That is because the provisions of Section 44AB(a) which says “every person carrying on business shall, if his total sales, turnover or gross receipts, as the case may be, in business exceed or exceeds one crore rupees in any previous year” and clause (b) of Section 44AB which says “every person carrying on profession shall, if his gross receipts in profession exceed fifty lakh rupees in any previous year”, are mututally exclusive, i.e., the former dealing with the assessee carrying on business and later dealing with the profession. 

None of the clauses under Section 44AB envisages the situation where the assessee is carrying on both the profession as well as business.

The High Court also observed that in Anandkumar (supra), the Assessing Officer had correctly opined that Section 44AD is available only for an eligible assessee engaged in an eligible business and that the assessee was not carrying on business independently but only as partner in the firm. The Assessing Officer further held that the assessee did not have any turnover and receipts on account of remuneration and interest from the firms cannot be construed as gross receipts mentioned in Section 44AD of the Act. The submissions thereon of the Revenue are totally contrary to the submissions made in the case at hand where, the Revenue is wanting to add the income received as remuneration from the partnership firm as professional income. In fact, in the case at hand, petitioner’s case is the same that petitioner’s remuneration from the partnership cannot be treated as gross receipt in profession and the petitioner’s stand that she was not required to get her accounts audited under Section 44AB, is correct. 

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