Section 40(b) of the Income Tax Act

Income-tax Act, 2025: s.35

Section 40(b) falls under section 40 of the Income-tax Act, 1961, which corresponds to section 35 (Amounts not deductible in certain circumstances) of the Income-tax Act, 2025.

Read section 35 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 40(b) is Textile Machinery Corporation Ltd. v. CIT (107 ITR 195), cited in 165 of the 428 judgments on BharatTax that turn on this section.

Leading authorities on Section 40(b)

Textile Machinery Corporation Ltd. v. CIT
107 ITR 195 · 1977 · Supreme Court
165
citing judgments

A new industrial undertaking is not considered a reconstruction of an existing business for tax deduction purposes if it is a separate, independent production unit manufacturing commercially tangible products that can operate without losing its identity in the old business. The transfer and substantial use of assets and manpower from an old business to a new one may indicate reconstruction.

7.14 In CIT v. Gwalior Rayon Silk Mfg. Co. Ltd.
196 ITR 149 · 1992 · Supreme Court
120
citing judgments

Incentive provisions in the Income-tax Act, particularly those granting deductions for new industrial undertakings, must be construed liberally to achieve their legislative purpose. This principle guides the interpretation of conditions such as what constitutes a 'new undertaking' versus a 'splitting up or reconstruction' of an existing business for claiming deductions.

CIT v. Ramniklal Kothari
74 ITR 57 · 1969 · Supreme Court
28
citing judgments

A partner's income from a firm, including salary, bonus, commission, or remuneration, is considered business income in their hands. Expenses necessary for earning this business income are deductible.

CIT vs. South Arcot Soc. (176 ITR 117, 119) (SC) Ct v. UO Co-op Fed. (
177 ITR 418 · 1989 · Supreme Court
26
citing judgments

Provisions granting deduction, exemption, or relief to an assessee are to be interpreted liberally and in favour of the assessee.

Haji Nazir Hussain v. ITO
91 ITD 42 · 2004 · ITAT
19
citing judgments

Section 68 additions can be made based on impounded papers, even if sums are not credited in books, to prevent assessees from benefiting from their own lapses.

Assam Bengal Cement Co. Ltd. v. CIT
159 ITR 253 · 1986 · High Court
16
citing judgments

Expenditure incurred with a view to producing profits is considered revenue expenditure.

Md. Serajuddin & Brothers v. CIT
210 Taxmann 84 · 2012 · High Court
16
citing judgments

Where a firm claims deduction for partner's remuneration under Section 40(b), income from other sources that is included in the profit and loss account cannot be excluded when calculating 'book profit'.

CIT v. Anil Hardware Store
323 ITR 368 · 2010 · High Court
7
citing judgments
Sanjeevi & Co. v. CIT
62 ITR 156 · 1966 · High Court
5
citing judgments
225 ITR 640 (MP) CIT vs Orissa Corporation (P) Ltd, 159 ITR 78 (SC) CIT v. Creative World Telefilms Ltd.
292 ITR 241 · 2007 · High Court
4
citing judgments

Judgments on Section 40(b)

Assam Timber Traders, Jaipur vs. Pr.CIT-1, Jaipur

In the result, this appeal of the assessee is allowed for statistical purposes only

ITA 17/JPR/2021[2016-17]Status: DisposedITAT Jaipur08 Sept 2021AY 2016-17

Bench: Shri Sandeep Gosain, Jm & Shri Vikram Singh Yadav, Am Vk;Dj Vihy La-@Ita No. 17/Jp/2021 Assessment Year: 2016-17 Assam Timber Traders, Cuke Pr.Cit-1 Vs. D-8, Kabir Marg, Bani Park, Jaipur. Jaipur. Pan No.: Aacfa 8222 C Vihykfkhz@Appellant Izr;Fkhz@Respondent Fu/Kzkfjrh Dh Vksj Ls@ Assessee By : Shri S.L. Poddar (Adv) Jktlo Dh Vksj Ls@ Revenue By : Shri B.K. Gupta (Pr.Cit-Dr) Lquokbz Dh Rkjh[K@ Date Of Hearing : 17/08/2021 Mn?Kks"K.Kk Dh Rkjh[K@ Date Of Pronouncement : 08/09/2021 Vkns'K@ Order Per: Sandeep Gosain, J.M. The Present Appeal Has Been Filed By The Assessee Against The Order Of The Ld. Pr.Cit-1, Jaipur Dated 30/03/2021 Passed U/S 263 Of The Income Tax Act, 1961 (In Short, The Act) For The A.Y. 2016-17. The Assessee Has Raised Following Grounds Of Appeal: “1. Under The Facts & Circumstances Of The Case The Learned Pr.Cit- 1, Jaipur Erred In Passing The Order U/S 263 Of The It Act 1961 Which Is Void Ab-Initio Deserves To Be Quashed. 2. Under The Facts & Circumstances Of The Case The Learned Principal Commissioner Of Income Tax Has Erred & Passing The Order U/S 263 Of Income Tax Act, 1961 On The Grounds Which Are Not Prejudicial To The Interest Of The Revenue Or Erroneous.

For Appellant: Shri S.L. Poddar (Adv)For Respondent: Shri B.K. Gupta (Pr.CIT-DR)
Section 115Section 115BSection 143(3)Section 236Section 263Section 40Section 69

Bhagwan Theaters (Firm), Allahabad vs. Income Tax Officer Ward-1(5), Allahabad

In the result, the appeals of the assessee are partly allowed

ITA 139/ALLD/2019[2012-13]Status: DisposedITAT Allahabad05 Jul 2021AY 2012-13

Bench: Shri.Vijay Pal Raoassessment Year: 2012-13 & Assessment Year: 2013-14 M/S. Shree Bhagwan Theatres V. Income Tax Officer, Ward- 166. Bai Ka Bagh, Allahabad - 1(5) 211003. Allahabad-211001. Tan/Pan: Aayfs0529E (Appellant) (Respondent) Appellant By: Shri K. K. Srivastava Shri Sumit Agrawal, C.A. Respondent By: Shri A.K. Singh, Cit ( Sr. Dr) Date Of Hearing: 12.07.2021 Date Of Pronouncement: 15.07.2021 O R D E R Per Shri Vijay Pal Rao: These Two Appeals By The Assessee Are Directed Against Two Separate Orders Of Cit(A)- Allahabad, Both Dated 08.08.2019 For The A.Ys. 2012-13 & 2013-14 Respectively. 2. For The A.Y.2012-13, The Assessee Has Raised The Following Grounds.- “1. Because The Authorities Below Erred In Law & On Facts In Dismissing The Appellants Grounds On The Issue Of Jurisdiction. 2. Because The Appellants Ground That The Authorities Below Could Not Travel Recorded Was Illegally & Unjustifiably Dismissed Legal Aspects As Has Been Brought By The Of Hearing Of Appeal. 3. Because The Ld. Cit(A) Unjustifiably Disallowed Part Of The Remuneration Of Partner Smt. Meera Gupta & Smt. Sita Gupta Without Provisions Of Section 40(B)

For Appellant: Shri K. K. SrivastavaFor Respondent: Shri A.K. Singh, CIT ( Sr. DR)
Section 139Section 143(3)Section 147Section 148Section 40

Trividh Corporation, Surat vs. Pr. CIT-2, Surat

In the result, the appeal of the assessee is allowed

ITA 86/SRT/2020[2015-16]Status: DisposedITAT Surat24 May 2021AY 2015-16

Bench: Shri Pawan Singh, Jm & Dr. A. L. Saini, Am आयकरअपीलसं./Ita No.86/Srt/2020 ("नधा"रणवष" / Assessment Years: (2015-16) (Virtual Court Hearing) Trividh Corporation, Vs. The Pcit, Surat. Tp No.25, Fp No.103, Aashtha Medicare & Residency, Abrama Road, Mota Varachha, Surat-395005. "थायीलेखासं./जीआइआरसं./Pan/Gir No.: Aahft0894N (Assessee) (Respondent) Assessee By : Shri Rajesh Upadhyay, Ar Revenue By : Shri S. T. Bidari, Cit(Dr) सुनवाईक"तार"ख/ Date Of Hearing : 13/05/2021 घोषणाक"तार"ख/Date Of Pronouncement : 24/05/2021 आदेश / O R D E R Per Dr. A. L. Saini: Captioned Appeal Filed By The Assessee, Pertaining To The Assessment Year (Ay) 2015-16, Is Directed Against The Order Passed By The Learned Principal Commissioner Of Income Tax, Surat [In Short “The Ld. Pcit”], Under Section 263 Of The Income Tax Act, 1961, [Hereinafter Referred To As The “Act”]. Grievances Raised By The Assessee Are As Follows: “1. Ld. Principal Cit Has Erred In Law & On Facts To Invoke Provisions Of Section 263 Of The Act & Finally ‘Set-Aside’ Ao’S Assessment Completed U/S 143(3) Of The Act & Also Direct The Ao To Frame The Assessment ‘Denovo’.” 2. The Relevant Material Facts, As Culled Out From The Material On Record, Are As Follows. The Assessee Before Us Is A Firm. It Has Filed Its Return Of Income For Assessment Year 2015-16 On 13.10.2015 Declaring Total Income At Rs. 4,42,80,220/-. The Assessee`S Case Was Selected For Scrutiny & Statutory Notice U/S 143(2) Of The Act Was Issued To The Assessee. The Assessee Is Engaged In The Business Of Construction & Project Development Activities. The Id Assessing Assessment Years.2015-16 Trividh Corporation Officer (Herein After Referred To ‘Ao’) Finalized The Assessment U/S 143(3) Of The Income Tax Act, On 11.12.2017, Accepting The Returned Income Of The Assessee.

For Appellant: Shri Rajesh Upadhyay, ARFor Respondent: Shri S. T. Bidari, CIT(DR)
Section 115BSection 131Section 133ASection 143(2)Section 143(3)Section 263