Case Law Details
Case Name : Sagar Dutta Vs D.C.I.T. (ITAT Kolkata)
Related Assessment Year : 2006- 07
Courts :
All ITAT ITAT Kolkata
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The brief facts of the case are that the AO observed from the return of income filed by the assesee that the assessee’ s income included income from salary from Price Water House of which he was a partner. Since income by way of salary or remuneration from a firm was to be assessed under the head profit and gains from business from profession in terms of section 28(v) of the Income tax Act and the receipts from the profession of the assessee was Rs. 74,16,000/- i.e. exceeding Rs. 10 lakhs, the assesee was required to get his accounts audited within the specifi
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Dear Permanand you have missed to mention that partner in his/her individual capacity not maintaing any books of account and as such quetion of their audit dose not arise at all.
Very unfortunate order of the Tribunal.It seems that in the case of Amal Ganguly,the AR has not argued the matter properly.Partner of PWH should and must file an appeal in the HC u/s260A.I am of the view that ICAI should fight this appeal in the HC caus it effects the interest of all the members.
Some times we can not get the justice till apex court but still we should not lose the hope because fact is fact and according to the provision of section 44AB of the Act is every person who is carrying on profession shall, if his gross receipts in profession exceeds the specified limit, has to get his accounts audited but in the case under consideration assessee in his individual capacity not carried out profession but whatever sum has been received was in the capacity of the working partner of the said firm and firm has got its books of accounts audited and it is the provision of the Act that any sum received in the form of interest, remuneration or share of profit will be taxed under the head of Income from Business or Profession so the remuneration received and taxed under the head of income from profession does not mean that he has to get his books of accounts audited.
The decision of the ITAT with due respect doe not lay down the correct law and it requires reconsideration.The condition of sec44AB is that the assessee should be carrying on the profession.A partner can never be said to be carrying on the profession and it is always the partnership firm which is engaged in the profession.A partner does have income from the partnership firm which is assessed to tax under the head of business but that does not mean that the profession carried by the firm is being carried by the partner.Both are well recognised different entities under the law.