SUBHASH CHAND vs. COMMISSIONER OF INCOME TAX
What did the High Court hold?
The Tribunal held that the deduction under Section 80HHC is to be allowed out of the profits of the business in proportion to the export turnover to the total turnover of the business carried on by the assessee. It noted that the firm, M/s Cycle Gears India, had already claimed and been allowed the deduction based on its export turnover and total turnover. The Tribunal found it illogical that the same deduction should be allowed again to the partners. It reasoned that a partner cannot claim the firm's total turnover as their own total turnover. Furthermore, the Tribunal stated that if the computing provisions are not satisfied, the deduction cannot be allowed. The assessee's formula for claiming the deduction was found to have no statutory sanction. The Tribunal concluded that the deduction under Section 80HHC was wrongly claimed by the assessee and allowed in the intimation under Section 143(1)(a), constituting a mistake apparent from the record. The Tribunal set aside the order of the CIT(A) and restored that of the AO, holding that there was no way to compute the deduction under Section 80HHC in the hands of the partner after it had been allowed to the firm. The substantial question of law was answered against the assessee.
What were the facts?
The assessee, Subhash Chand, is an individual and a partner in M/s Cycle Gears India. For Assessment Year 1993-94, the assessee declared income of Rs. 60,490, which was processed under Section 143(1)(a) of the Income Tax Act, 1961, and a refund was issued. Subsequently, the Assessing Officer (AO) found that the assessee had claimed a deduction of Rs. 1,63,842 under Section 80HHC for income derived from export business of the firm. The AO held that this deduction was allowable only to the firm and not to the partner in his individual capacity. Observing a mistake apparent from the record, the AO rectified the order under Section 154, disallowing the deduction. The Commissioner of Income Tax (Appeals) cancelled the AO's order, holding that the issue involved debatable points and was not suitable for rectification. The Revenue appealed to the Income Tax Appellate Tribunal (ITAT).
What were the issues?
1. Whether, on the facts and circumstances of the case and on the true interpretation of Sections 80HHC, 28(i), 40(a)(iii), and 80AB of the Income Tax Act, 1961, the Tribunal was justified in holding that interest and salary drawn by a partner from a firm engaged in export business, whose income is exempted under Section 80HHC, is not eligible for exemption to the partner in respect of such interest and salary, as its computation is not possible? Assessee's contention: The assessee argued that the deduction under Section 80HHC is permissible out of business income and cited the ITAT Jaipur Bench decision in Moti Chand Rawat. The assessee's return claimed the deduction by applying a formula: (Salary + Interest received) / Total Profit X Deduction u/s 80HHC. Revenue's contention: The Revenue contended that the deduction under Section 80HHC was allowable to the firm only and not to the partner in his individual capacity. The Tribunal's reasoning, as presented in the judgment, indicates it found the assessee's claim illogical and without statutory sanction.
Which sections of the Income-tax Act were involved?
Section 80HHC,Section 28(i),Section 40(a)(iii),Section 80AB,Section 143(1)(a),Section 154
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
vide order 25.3.1994. Later on it was found by the assessing officer
. 1,63,842/- that the assessee had claimed deduction of Rs
80
under Section HHC of the Act in the capacity of his being
a partner in the firm in respect of goods exported by the .
said firm It was held that the above deduction was allowable
- to the firm only and it could not be allowed to the assessee
. ,
partner in his individual capacity Consequently the assessing
officer after issuing notice to the assessee and considering
,
. reply submitted by him observed that the deduction of Rs 1,63,842/-
80
80 (3) under Section HHC read with Section A
,
had been wrongly claimed and allowed also while processing
143(1) ( )
. the return under Section a of the Act The
assessing officer observing that there was mistake apparent
,
. from the record in that regard rectified the same The
matter was carried by the assessee before the Commissioner
- ( ) [
“
( ) ]. of Income tax Appeals in short the CIT A ” The
appellate authority held that controversial and debatable points
, ,
were involved in the matter and therefore it was not a fit
4 -
. 14 2003 of
154
case where order under Section of the Act could have .
been passed The order passed by the assessing officer
. disallowing deductions referred to above was cancelled 3. . The Revenue preferred appeal before the Tribunal
The Tribunal after considering the rival submissions made by ,
, the parties while allowing the appeal of the Revenue
7 10
: recorded in paras to of its order as under “7. We have given careful thought to the rival
.
, submissions of the parties At the very outset it
/ 80
may be stated that deduction u s HHC has
/ .
( ) been allowed to firm M s Cycle Gears India in
.
which the assessee is a partner There is further
no dispute that share income received by the
assessee from above firm has not been subjected
. . . to tax in view of statutory changes made w e f 1.4.1993. Only interest on capital and salary
received by the assessee from firm aggregating to . 1,63,711/-
. Rs was disclosed in the return
,
Against above receipt which no doubt is a , / 80
business receipt deduction u s HHC amounting
5 -
. 14 2003 of . 1,63,842/-
. to Rs was claimed in the return It is
the case of the assessee that above deduction is
.
permissible out of business income In support of ,
this the decision of ITAT Jaipur Bench in the case
( )
. of Moti Chand Rawat supra was cited On
,
consideration of above decision we find that the
Bench was dealing with a case relating to 1989-90
assessment year and interest received by
the assessee which was treated as exempt in the
case of the firm was also treated as not taxable in
the hands of the partners on the basis of some
1992. circular of the CBDT dated The said
, circular is not cited in the decision nor copy ,
.
,
thereof is available At any rate decision relating
1989-90
to assessment year cannot be applied in 1993-94
assessment year on account of wholesale
amendment of statutory provisions relating to
. . . 1.4.1993. taxation of firms and partners w e f
The interest and salary received by the
assessee as partner is no doubt business income
6 -
. 14 2003 of
/ but it seems to be illogical that deduction u s 80
HHC which has already been allowed to the firm
should again be allowed to the partners of the . same firm 9. / 80 (1),
U s HCC deduction has to be allowed
,
“
out of total income if the assessee is engaged in
business of export out of India of any goods or
…… . merchandise to which this section applies ” The
- said deduction is to be computed as per sub (3)
80 .
section of section HHC The relevant
portion applicable for the assessment year under
:- consideration is as under “(3)( )
a Where the export out of India is of
goods or merchandise manufactured or
,
processed by the assessee the profile derived
from such export shall be the amount which
,
bears to the profits of the business the same
proportion as the export turnover in respect of 7 -
. 14 2003 of
such goods bears to the total turnover of the
. business carried on by the assessee ” (
) Other clauses are not relevant
It is quite evident from above that deductions out
of profits of business is to be allowed in the same
“
proportion as export turnover” bears to the total -
turn over of the business carried on by the .
“ assessee So the assessee must have export
“
-
turnover” and total turn over” for computing .
,
deduction Now under the scheme a firm is a
. separate assessee from that of its partners Share
income received by a partner is not subjected to . . . 1.4.1993. -
tax w e f The total turn over and export -
/ . turn over of business carried on by m s Cycle ( )
Gears India has already been taken into account
and deduction worked out and allowed in that .
case The same figures cannot be export turnover
-
- and total turn over in the hands of the assessee .
partner It is difficult to accept that a partner
8 -
. 14 2003 of
having a share in the firm can claim that total
. turnover of the firm is his total turnover It is also
settled law that if computing provisions are not ,
. satisfied the deduction cannot be allowed 10. ,
In the present case the assessee was faced
with above problem to find export turnover and .
, total turnover In the absence of above figures he
/ 80
computed deduction u s HHC by adopting the
:- following formula shown in the return +
/ Salary Interest received X Deduction u s 80 =
. HHC Total Profit
The above formula has no statutory sanction and
demonstratively shows that the assessee has no
/ 80
justification for claiming deduction u s HHC of .
the Act We are of the view that the assessee has
, ,
no arguable case and therefore no debate can be .
/ raised It is absolutely clear that deduction u s 80
HHC was wrongly claimed by the assessee and
/ 143(1) ( )
. allowed in intimation u s a of the Act It 9 -
. 14 2003 of
.
was a mistake apparent from record There is no
/ 80
way to compute deduction u s HHC in the
hands of the partner once again after allowing the
. same to the firm where the assessee is a partner
,
In the light of above discussion we hold that the
/ 154
AO was justified in passing order u s of the . ,
Act
Accordingly we set aside the order of the CIT ( )
. A and restore that of the AO ” 4. - Learned counsel for the assessee
appellant could not refer to any material to show that the
approach of the Tribunal was erroneous or perverse in any . manner 5. ,
In view of the above it is clear that it
was only the firm of which the assessee was partner which
80
. could claim deductions under Section HHC of the Act
Such deduction could not have been claimed by the assessee , ,
and thus the same was rightly disallowed by the assessing
. officer and upheld by the Tribunal
10 -
. 14 2003 of 6. ,
Consequently the substantial question of law
noticed above as claimed by the assessee is answered
.
. against the assessee Appeal is accordingly dismissed (
) AJAY KUMAR MITTAL JUDGE (
ADARSH KUMAR ) GOEL 14, 2010 July JUDGE * * rkmalik
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