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)

S. Kushalchand & Co., Mumbai vs. CIT 21, Mumbai

In the result, the assessee’s appeal is partly allowed

ITA 3724/MUM/2014[2009-10]Status: DisposedITAT Mumbai26 Aug 2016AY 2009-10

Bench: Shri Sanjay Arora, Am & Shri Pawan Singh, Jm आयकर अपील सं./I.T.A. No. 3724/Mum/2014 ("नधा"रण वष" / Assessment Year: 2009-10) S. Kushalchand & Co. Cit-21, बनाम/ B-1 & 2, Jay Chambers, C-11, Pratyakshakar Bhavan, Service Road, Opp. W. E. Highway, Bandra Kurla Complex, Bandra (E), Vs. Vile Parle (E), Mumbai-400 057 Mumbai-400 051 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aabfs 2433 G (अपीलाथ" /Appellant) (""यथ" / Respondent) : अपीलाथ" क" ओर से / Appellant By : Shri V. G. Ginde ""यथ" क" ओर से/Respondent By : Shri Sahi S. Kumar सुनवाई क" तार"ख / : 01.6.2016 Date Of Hearing घोषणा क" तार"ख / : 26.8.2016 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: This Is An Appeal By The Assessee Directed Against The Order Under Section 263 Of The Income Tax Act, 1961 (‘The Act’ Hereinafter) By The Commissioner Of Income Tax-11, Mumbai (‘Cit’ For Short) Dated 26.3.2014, Setting Aside Her Assessment For The Assessment Year (A.Y.) 2009-10 Vide Order Dated 28.12.2011. 2.1 The Controversy That Obtains In The Instant Case Is With Regard To The Deductibility Of The Sum Of Rs.12,08,534/- In Arriving At The Computation Of The Assessee’S Business Income For The Year; The Relevant Part Of The Ld. Cit’S Order Reading As Under:

For Appellant: Shri V. G. GindeFor Respondent: Shri Sahi S. Kumar
Section 263Section 40

Garg Trading Co., Rohtak vs. ITO, New Delhi

In the result, the appeal filed by the assessee is allowed

ITA 6865/DEL/2015[2011-12]Status: DisposedITAT Delhi31 May 2016AY 2011-12

Bench: Sh. I.C. Sudhir & Sh. O.P. Kantassessment Year: 2011-12 M/S. Garg Trading Co. , C/O- N.C. Vs. Income Tax Officer, Ward-1, New Garg, Chartered Accountant, M.G. Delhi Road, Rohtak Gir/Pan : Aaffg5606F (Appellant) (Respondent) Appellant By S/Sh. Gautam Jain & Piyush Kumar Kamal, Advocates Respondent By Smt. Rishpal Bedi, Jcit (Dr) Date Of Hearing 18.04.2016 Date Of Pronouncement 31.05.2016 Order Per O.P. Kant, A.M.: This Appeal Of The Assessee Is Directed Against Order Dated 13/11/2015 Of Learned Commissioner Of Income-Tax (Appeals), Rohtak, For Assessment Year 2011-12, Raising Following Grounds: 1. That The Learned Commissioner Of Income Tax (Appeals) Has Erred Both In Law & On Facts In Sustaining Disallowance Of Rs. 169829/- Representing The Alleged Excess Salary Paid To The Partner By Invoking Clause (V) Of Section 40(B) Of The Act. 1.1 That The Learned Commissioner Of Income Tax(Appeals) Has Failed To Appreciated That The Salary Paid To The Partners Was In Terms Of Clause (9) Of The Deed Of Partnership Dated 12.04.2007 Which Had Been Allowed Consistently In Preceding & Succeeding Assessment Years And, Therefore, Disallowance Made Is Illegal, Invalid & Untenable. It Is, Therefore, Prayed That Additions Sustained Of Rs. 169829/- Be Deleted & Appeal Of The Appellant May Kindly Be Allowed.

Section 143(3)Section 40