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2011 (2) TMI 1186 - ITAT MUMBAIProfessional charges vs salary income - assessee is a lecturer and has understanding with M/s. Nayak Tutorials for teaching the Algebra to his students of the 9th & 10th classes - A.O. has noted that M/s. Nayak Tutorials is having branches at Kalyan, Dombivali, Mulund and Thane and tax is deducted treating the fees paid to the assessee on hourly basis as a professional fees u/s. 194J - Held that:- As per the facts on the record, in this year no relationship of the master and servant exists between the M/s. Nayak Tutorials and the assessee and fees received by the assessee on per hourly basis for delivering lectures on the Algebra to the students of M/s. Nayak Tutorials cannot be treated as a 'salary'. It is also pertinent to note here that the assessee teaches Algebra, which requires special/personal skill and intellect and it is not a labour work. Apart from that the contract, which is implied one, between the M/s. Nayak Tutorials and the assessee is a contract for service and not contract of service. Therefore, hold that the income/fees received by the assessee is to be assessed under the head "income from business or profession". Disallowance of expenditure - Held that:- As A.O., while completing the assessment, has only considered the head under which the income is to be assessed, hence, the expenditure claimed by the assessee was not verified, therefore, considered it fit to restore the ground to the file of the A.O. for limited purpose of the verification. The A.O. should verify the expenditure claimed by the assessee and accordingly allow the same as per the provisions of the Act. In favour of assessee for statistical purposes.
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