SUNIL KUMAR DOSHI,BARMER vs. DCIT, CPC / ITO, WARD-1,, BANGALORE / BARMER

This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 16.08.2022 [here in after (NFAC)] for assessment year 2018-19.

2. The assessee has marched this appeal on the following grounds:-

Sunil Kumar Doshi “1. a. The order passed by the ld. CIT(A) confirming the disallowance made in order u/s 143(1), by the ld. AO is bad in law and bad on facts, and such adjustment made was not justified u/s 143(1), as was not an apparent addition. b. The addition was not an apparent mistake of fact or law and even after the order of the ld. AO has directed to collect some more information before making assessment, which is beyond jurisdiction of the present proceedings. 2. a. The ld. AO has erred in not deleting the addition of Rs. 62,641/- made by the ld. AO in 143(1) order on account of depreciation claimed. b. The ld. CIT(A) has erred in not following the decision of Hon’ble ITAT in assessee own case referred before him and direction given are contrary to the said order.

3. The appellant pray for suitable costs.

4. The appellant crave liberty to add, amend, alter, modify or delete any of the ground of appeal on or before its hearing before your honours”

The return of income was processed by the AO at CPC u/s 143(1) of the Act, determining the total income of the assessee at Rs. 52,56,780/-. While doing so, the AO made an addition/adjustment of Rs. 62,641/- by denying the assessee’s claim of depreciation on motor vehicles. Feeling aggrieved by the said adjustment, the assessee moved an application for rectification application 154 of the Act dated 29.05.2019 before the AO at CPC and the same was rejected by the AO, vide impugned rectification order u/s 154 of the Act dated 26.06.2019.

Sunil Kumar Doshi 4. Aggrieved from the order of the AO(CPC), assessee preferred an appeal before the ld. CIT(A)/NFAC. A propose to the grounds so raised the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below:

“7.3 I have given my thoughtful consideration to the submissions made by the assessee in the light of the factual matrix of the case and carefully examined the material placed on record with reference to the relevant provisions of the statute and judicial precedents on the subject. Also, I have given due consideration to the decision of the Hon'ble ITAT, Jodhpur Bench, in the assessee's own case for the AY 2016-17 and found the same is distinguishable on facts of the case on hand.

7.4 At the outset, it is an admitted fact that, while filing the return of income, the assessee claimed depreciation on motor vehicles against the income disclosed under the head Income from other sources u/s. 56 of the Act. Also, it is not under dispute that the assessee is not eligible to claim depreciation on motor vehicles against income assessable to tax u/s. 56 of the Act. As such, prima facie, the assessee is not entitled to claim depreciation on motor vehicles against income under the head Income from other sources.

7.5 Be that as it may, as held by various High Courts and the Hon'ble Supreme Court, it is settled position of law that the assessee is entitled to claim depreciation on motor vehicles owned by the assessee against the income received from partnership firm which is assessable to tax under the head Profits and gains of business or profession.

7.6 At this juncture, it is interesting to note that, at per Para No. 1.4 of the written submissions (supra), the assessee stated that he is a partner in certain firm and had derived income from such partnership firm in the shape of interest, remuneration and share of profit. However, it is quite conspicuous to note that the assessee has neither furnished the details of the name of the partnership firm wherein he is a partner, the amount of investment/capital made in such firm, his share of profit in the firm, etc., nor furnished the details of actual amount of income received from such firm such as interest on capital/investment, remuneration/salary received for services rendered, if any, and share of profit received during the FY 2017-18 relevant to the impugned AY 2018-19.

7.7 On the other hand, as depicted in the impugned rectification order u/s. 154 of the Act (supra), the assessee disclosed income under various heads, before claiming deduction under Chapter VIA of the Act, as tabulated below:

Sl. No. Head of income Income disclosed (in Rs.) 1 Salaries 11,97.500/- 2 Income from house property 1,95,450/- 3 Profits and gains of business or profession 13,832/- 4 Income from other sources 29, 52,113/- Total 53,54,139/-

7.8 However, the assessee has not disclosed the details of share of profit received from the partnership firm, which is otherwise exempt from tax in the hands of the assessee u/s. 10(2A) of the Act. Also, the assessee has not fumished the details of income received from the partnership firm which is included in the income disclosed under the head Profits and gains of business or profession of Rs. 13,832/-.

7.9 At this juncture, it is important to note that the expenditure claimed by the assessee towards income received from the partnership firm shall be apportioned pro-rata against the share of income and other income i.e., interest on capital/investment, remuneration/salary, etc. In this regard, reliance is placed on following case laws wherein it has been held that provisions of section 14A of the Act are applicable in respect of share income of a partner from a partnership firm which is exempt from tax u/s.10(2A) of the Act, and, therefore, proportionate expenditure incurred in earning the share of profit from the firm should be disallowed. 1) Vishnu Anant Mahajan Vs ACIT [2012] 22 taxmann.com 88 (Ahmadabad Tribunal- Special Bench): In this case, Special Bench of Hon'ble ITAT has held that share income of a partner from partnership firm is not liable to tax under section 10(2A) of the Act and, in such a case, provisions of section 14A of the Act apply to disallow expenditure incurred on earning said income.

Sunil Kumar Doshi The relevant portion of the judgement is reproduced below for ready reference:

"Insofar as share income is concerned, the field is occupied by the tax law, as it is enacted that the share income shall not form part of total income of the partners. Therefore, in view of this specific provision and the fact that the firm and partners are separately assessable entities, it will be difficult to hold that the share income is not excluded from the total income of the partner because the firm has already been taxed thereon. When section 10(2A) speaks of its exclusion from the total income, it means, the total income of the person whose case is under consideration. The instant case is that of the partner and, therefore, what is to be examined is whether the share income is excluded from his total income. The answer is obviously in the affirmative. In such a situation, provision contained in section 14A will come into operation and any expenditure incurred in earning the share income will have to be disallowed. Thus, the Commissioner (Appeals) rightly held that the provision contained in section 14A is applicable to the facts of the case. Further, it has been held in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 194 Taxman 203 (Bom.) that all facts may be taken into consideration for determining the quantum of disallowance to be made. This portion of the judgment is applicable only in respect of determination of quantum of disallowance. The Commissioner (Appeals) has disallowed the expenditure in the ratio of income not included in the total income and the income received from the firm. In the absence of any argument regarding any error in this part of the decision, it is held that he was right in doing so." [Para 7]

(emphasis supplied)

2) Paras Bhomraj Oswal Vs ACIT [2016] 50 ITR(T) 554 (Pune - Trib.) In this case, Hon'ble ITAT has held that as per the provisions of 14A of the Act expenditure incurred for earning tax-fee income should be disallowed while computing the total income of the assessee. Accordingly, in the case of partner of a partnership firm, as the share of profits is exempt from tax under section 10(2A) of the Act in the hands of the partner, disallowance under section 14A of the Act is attracted in respect of such income. The relevant portion of the judgement is reproduced below for ready reference:

Sunil Kumar Doshi tax free income of Rs. 49,79,071/- from M/s. Tirupati Pooja Construction where the assessee has holding 60% share. The contention of the assessee is that the income of the partnership firm is not tax free. Before distribution of profits, tax is paid on the income of partnership firm, therefore, no disallowance u/s. 14A should be made on the share of profit received from partnership firm. The Id. Counsel has placed reliance on the Circular No. 8/2014 to support his contentions that once the tax has been paid by the firm the same is not liable to be taxed in the hands of the partners of the assessee. Therefore, no disallowance should be made in the hands of the assessee. ARTMENT

We do not find merit in the submissions of the Id. Counsel for the assessee. Disallowance u/s. 14A is with respect to expenditure incurred for earning tax free income. The share of profits from partnership firm is exempt from tax u/s. 10(2A) of the Act in the hands of the partner. Therefore, it is tax free income in the hands of the assessee. The assessee has not made any disallowance for earning tax free income. The Assessing Officer has rightly invoked the provisions of section 14A r.w. Rule 8D for making such disallowance. The Circular No. 8/2014 rather clarifies the reason as to why the share of profits of a partnership firm is exempt from tax in the hands of partner. The same is reproduced here-in-under:

"SECTION 10(2A) OF THE INCOME TAX ACT, 1961 - FIRM -SHARE OF PROFITS TO PARTNER OF FIRM – CLARIFICATION ON INTERPRETATION OF PROVISIONS OF SECTION 10(2A) IN CASES WHERE INCOME OF FIRM IS EXEMPT CIRCULAR NO. 8/2014 [F. NO.173/99/2013-ITA-1], DATED 31-3-2014

A reference has been received in the Board in connection with the interpretation of provisions of section 10(2A) of the Income tax Act, 1961 (Act') seeking clarification as to what will be the amount exempt in the hands of the partners of a partnership firm in cases where the firm has claimed exemption/deduction under Chapter III or VI-A of the Act.

Sunil Kumar Doshi 3. It is clarified that 'total income' of the firm for sub section (2A) of section 10 of the Act, as interpreted contextually, includes income which is exempt or deductible under various provisions of the Act. It is, therefore, further clarified that the income of a firm is to be taxed in the hands of the firm only and the same can under no circumstances be taxed in the hands of its partners. Accordingly, the entire profit credited to the partners' accounts in the firm would be exempt from tax in the hands of such partners, even if the income chargeable to tax becomes NIL in the hands of the firm on account of any exemption or deduction as per the provisions of the Act.

A perusal of circular would show that the interpretation drawn by Id. Counsel for excluding share of partnership firm from scope of section 14A is not sustainable. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in upholding the disallowance made by the Assessing Officer. Accordingly, the ground No. 3 raised by the assessee in its appeal is dismissed.

3) ACIT Vs Vinay Sehgal [2012] 27 taxmann.com 136 (Chandigarh Tribunal):In this case, it has been held by the Hon'ble ITAT that where the assessee had invested borrowed funds in partnership firm from which he received share of profit not taxable in his hands, interest relatable to borrowed funds utilized in firm was to be disallowed under section 14A of the Act.

4) Hoshang D. Nanavati Vs ACIT [2012] 16 ITR(T) 614 (Mumbai - Trib.): In this case, it has been held by the Hon'ble ITAT that where the assessee has earned income from profit share as also from remuneration from same firm, expenses incurred by assessee in ratio which profit share in firm bore to total receipts from firm, i.e., on account of profit share as also remuneration, were to be disallowed under section 14A of the Act.

7.10 In view of the aforementioned factual matrix and settled position of law, I am of the firm view that, in the instant case, though the assessee is eligible to claim depreciation on motor vehicles against the business income received from the partnership firm, but by virtue of the provisions of section 14A of the Act rw Rule 8D of the Rules, 1962, the expenditure attributable to share of profit, which is exempt from tax u/s. 10(2A) of the Act, shall be disallowed.

Sunil Kumar Doshi 7.11 Accordingly, while giving effect to this order, the assessee is directed to furnish the details of the actual amount of income received from the partnership firm under various heads such as interest on capital/investment, salary/remuneration and share of profit, along with copy of partnership deed to the AO. Further, the AO is directed to verify the break-up of taxable income received from the firm i.e., interest on capital/investment, salary/remuneration and tax exempt income i.e., share of profit and apportion the depreciation on motor vehicles pro-rata against such taxable and tax exempt income and arrive at the actual amount of depreciation attributable to taxable income. Accordingly, the AO is directed to delete the addition attributable to taxable income received from the firm. Thus, the ground of appeal raised by the assessee on this issue treated as partly allowed.

8.0 In the result, the appeal against the rectification order u/s. 154 of the Act for AY 2018-19 is partly allowed.”

1.1. The appellant had filed return of income on 18.8.2018 declaring total income of Rs. 51,94,140/- which was assessed u/s 143(1) at Rs. 52,56,780/-. The variation in income was on account of not allowing claim of depreciation of Rs. 62,641/- against income from other sources. The appellant submitted that the adjustment made was not justified however the said application was also rejected, and therefore the appellant is in appeal before your honour challenging the order made u/s 143(1)/154 making this adjustment. The said adjustment so made is legally without proper jurisdiction and is outside the scope of section 143(1) / 154 and on facts also the same is outside the scope of such adjustment.

Sunil Kumar Doshi 1.2. It is well settled that no addition can be made in a order u/s 143(1) / 154 where detailed reasoning is required for making any addition. The disallowance of depreciation is not a apparent mistake of law or fact which could be disallowed in summary order. The conclusion can be taken only on the basis of detailed examination of the facts and circumstances and after detailed examination and are not subject matter of rectification proceedings.

1.3. In the landmark decision of Hon’ble Supreme Court in the case of Volkart Brothers they have very elaborately defined the scope of powers u/s 154, and we reproduce hereunder the findings given in the said order.

“From what has been said above, it is clear that the question whether S. 17(1) of the Indian Income-tax Act, 1922 was applicable to the case of the first respondent is not free from doubt. Therefore the Income-tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under S. 154 of the Income-tax Act, 1961. A mistake apparent on the record must be an obvious and patent mistake and not ,something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and ors. v. Millikarjun Bhavanappa Tirumale(1) this Court while Spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record-see Sidhamappa v. Commissioner- of Income-tax, Bombay(2). The power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is (1) [1960] 1 S.C.R. 890. (2) 21 I.T.R. 333. undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In this case it is not necessary for us to spell out the distinction between the expressions 66 error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income tax

Sunil Kumar Doshi Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent.”

1.4. The appellant is partner in certain firm and had derived income from these partnership firm in the form of Interest, remuneration and share of profits. Besides this income the appellant also derives interest income from various advances given.

1.5. The appellant had been using the vehicles for the purpose of his business as well as money lending business which he is carrying and deduction of depreciation is allowable as deduction against this income. It is respectfully submitted that any expenditure incurred by the partners for the business is allowable business expenditure.

1.6. Similar issue came up in earlier year and in the scrutiny assessment made the disallowance of depreciation was made, and in appeal the said claim was duly allowed. The copy of the order of Hon’ble ITAT in the case of the appellant for earlier year is submitted herewith. In view of the said decision, the claim so disallowed was not justified and deserves to be allowed to the appellant.

1.7. Your kind attention is also invited towards the decision of Hon’ble Supreme Court in the case of CIT v. Ramniklal Kothari reported in 74 ITR 57 (SC) in which also it has been held as under :

“Business Expenditure – Allowability – Expenditure incurred for earning share income by partner of firm – Receipt of share income by partner is business income for purpose of section 10(1) of 1922 Act – Expenditure by way of salary and bonus to staff, maintenance of car and travelling expenses for the purpose of earning such income, therefore allowable as business expenditure.” b. RAM MURTI SOOD vs. ITO (1982) 14 TTJ (CHD) 352

Business Expenditure—Allowability of deduction—Personal car used by assessee partner for business of firm—Assessee was entitled to allowance of such expenditure and depreciation or car against share income from said firm Held:

Sunil Kumar Doshi The Learned Counsel for the assessee submitted that in this case also, the assessee has share income from three firms and has no independent business of his own. It was contended that factually he was travelling between Sirhind and Sadhugarh for purposes of the business of the firm and was also going to various villages for disbursement of amounts to Zamindars who were given advances to make sure that tey sell their produce through the assessee. As such the amount was admissible and should have been allowed. The Supreme Court in the case of Ramniklal Kothari has laid down a general proposition that the business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business. The share of the partner is business income in his hands for purposes of s. 10(1) of the IT Act, 1922, and being business income expenditure necessary for purposes of earning that income and appropriate allowances are deductible therefrom in determining taxable income of the partners.Taking into consideration the general proposition of law laid down by the Supreme Court, Gujarat High Court and the Patna High Court that the partner if he expends an amount in earning the share of profit from a firm, he can on showing its actual expenditure be allowed a deduction from the total income, the case of the assessee is to be examined. The authorities below have not bifurcated the amount of Rs. 12,000 as to the expenditure on petrol and the depreciation on car. However, it is common ground that the car was new and was purchased during the previous year relevant to the asst. yr. under appeal. It was clarified at the bar by the Learned Counsel for the assessee and by the assessee who was present in the court that the total expenditure on petrol was Rs. 3,500 and he claimed Rs. 2,000 only as relating to the business activities of the firm from which he earned the profit. Applying the above laid down principles by the Hon’ble Courts, it is held that the expenditure of Rs. 2,000 incurred by the assessee was an expenditure wholly and exclusively laid out for carrying on the business and earning business income. The share of profits of the assessee from various firms including the firm of M/s.Sood Bhandari and Cop. Therefore, constituted business income in his hands. Against this business income, the assessee is entitled to deduct the expenditure incurred actually for earning this income and depreciationon the car. It is found that the assessee had actually used the car for this purpose because the activities of the firm, the distance between the head office and the branch office and participation of the assessee in the business of the firm justify it. c. CHELLA KRISHNA vs. ACIT (2018) 168 ITD 117 (Chennai) Business expenditure—Allowability—Income assessed under s. 28(v)—Income of assessee a chartered accountant by way of salary and profits from various firms having been assessed under s. 28(v), expenses incurred by him towards clubs, travelling bank charges, lodging, periodicals, telephone, salary to employee were allowable expenditure—However, since assessee had agreed to disallowance of 25 per cent of expenditure, disallowance directed to restricted to the extent

1.8. It is respectfully submitted that the claim of depreciation is apparently allowable against the business income, and inadvertently the same had been claimed set off against income from other sources. The deduction of such business expenditure is also apparently allowable against the business income taxed in the hands of the assessee.

1.9. In view of above, the adjustment made to the returned income may kindly be deleted.”

“7.3 I have given my thoughtful consideration to the submissions made by the assessee in the light of the factual matrix of the case and carefully examined the material placed on record with reference to the relevant provisions of the statute and judicial precedents on the subject. Also, I have given due consideration to the decision of the Hon'ble ITAT, Jodhpur Bench, in the assessee's own case for the AY 2016-17 and found the same is distinguishable on facts of the case on hand.

Sunil Kumar Doshi 7. We have heard the rival contentions, perused the material placed on record and gone through the judicial decisions relied upon.

The only grievance of the assessee in this appeal is disallowance of depreciation of Rs. 62,641/- claimed by the assessee. We note that on this issue the claim of the assessee is covered by the decision of the coordinate bench in wherein the claim of the depreciation was allowed. We also note from the order of the ld. CIT(A) who also considered the plea of the assessee but restored the issue to the file of the ld. AO by observing as under:

“7.11 Accordingly, while giving effect to this order, the assessee is directed to furnish the details of the actual amount of income received from the partnership firm under various heads such as interest on capital/investment, salary/remuneration and share of profit, along with copy of partnership deed to the AO. Further, the AO is directed to verify the break-up of taxable income received from the firm i.e. interest on capital/investment, salary/remuneration and tax exempt income i.e. share of profit and apportion the depreciation on motor vehicles pro-rata against such taxable and tax exempt income and arrive at the actual amount of depreciation attributable to taxable income. Accordingly, the AO is directed to delete the addition attributable to taxable income received from the firm. Thus, the ground of appeal raised by the assessee on this issue treated as partly allowed.”

Thus, we see no reasons as to why the issue needs verification by the ld. AO when the same is squarely covered by the decision of the coordinate bench in the assessee’s own case and the revenue did not bring anything contrary to the finding of the coordinate bench decision

Sunil Kumar Doshi we see no reason to confirm the addition and therefore, we direct the ld. AO to allow the same for an amount of Rs. 62,641/- as claimed by the assessee. Based on these observation ground no. 2 raised by the assessee is allowed and ground no. 1 being technical becomes educative in nature since we have allowed the appeal of the assessee on merits ground no. 3 & 4 are general in nature and does not require any adjudication.

In the result, appeal of the assessee is allowed.

Order pronounced under rule 34(4) of the Income Tax Appellate