2011 (8) TMI 750 - AT - Income Tax

Salary to partners u/s 40(b) - partner is representative of HUF - Explanation to section 40(b) - held that - a working partner can be an individual who is actively engaged in conducting the affairs of business of the firm of which he is a partner. It is not the objection of the Assessing Officer or of Ld. DR of the Revenue that salary was not paid by the firm to an individual. It is also not an objection that the concerned individual is not actively engaged in conducting the affairs of the business of the assessee-firm. - The objection is this that such individual is not a partner of the assessee-firm in his individual capacity but he is a partner in the capacity of representative of HUF of which he is a karta and for this reason the Revenue has rejected the claim of the assessee. - in view of the judgment of Hon ble apex court rendered in the case of Rashik Lal & Co. (1997 -TMI - 5629 - SUPREME Court) deduction u/s 40(b) allowed - Decided in favor of assessee.

Summary

Issues:
1. Validity of the order due to time limitation.
2. Disallowance of salary to partner.

Issue 1: Validity of the order due to time limitation:
The appeal was against the order of the Commissioner of Income-tax (Appeals)-XVI, Ahmedabad for assessment year 2007-08. The appellant contended that the order was invalid and bad in law as the notice under section 143(2) was served after the prescribed time limit. The appellant also argued that the order passed without considering submissions was void ab initio. The ground was not pressed and hence rejected.

Issue 2: Disallowance of salary to partner:
The main contention was the disallowance of salary paid to a partner in his representative capacity of a Hindu Undivided Family (HUF). The appellant cited previous Tribunal decisions and a judgment of the Hon'ble Gujarat High Court to support their case. The Revenue relied on a subsequent judgment of the Hon'ble apex court. The key argument revolved around Explanation-4 to Section 40(b) which defines a "working partner." The Revenue claimed that the partner was not actively engaged in the business as an individual but as a karta of the HUF. The Tribunal analyzed various judgments, including the case of Rashik Lal & Co., emphasizing that a partner functions in a personal capacity regardless of being a representative of an HUF. As per the Tribunal's interpretation, the requirements of Explanation-4 to Section 40(b) were met in this case, and the disallowance was unjustified. Consequently, the disallowance made by the Assessing Officer and confirmed by the CIT(A) was deleted, and the appeal was allowed.

This detailed analysis of the judgment highlights the legal arguments, interpretations of relevant sections, and the Tribunal's reasoning behind allowing the appeal.