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2022 (3) TMI 621 - HC - Income TaxRevision u/s 264 - requirement to get accounts audited u/s 44AB - determination of turnover - inclusion of remuneration from the partnership firm in the gross receipt from from the profession (in the hands of partner) - as submitted return of income was treated as invalid was because according to respondent, petitioner failed to get her accounts audited u/s 44AB though her gross receipts / turnover after including remuneration received from partnership firm was more than the threshold limit of ₹ 50,00,000/- - HELD THAT:- Profession is defined under Section 2(36) of the Act as under: “Profession includes vocation”. The income earned by petitioner as remuneration received as working partner or partners’ remuneration, cannot be held as carrying on profession as well as business simultaneously in different field. That is because the provisions of Section 44AB(a) which says “every person carrying on business shall, if his total sales, turnover or gross receipts, as the case may be, in business exceed or exceeds one crore rupees in any previous year” and clause (b) of Section 44AB which says “every person carrying on profession shall, if his gross receipts in profession exceed fifty lakh rupees in any previous year”, are mututally exclusive, i.e., the former dealing with the assessee carrying on business and later dealing with the profession. None of the clauses under Section 44AB envisages the situation where the assessee is carrying on both the profession as well as business. In a matter which is similar to this matter at hand, where the scope of Section 44AD of the Act came up for consideration, is the judgment of Madras High Court in Anandkumar [2020 (12) TMI 994 - MADRAS HIGH COURT] while upholding the contentions of Revenue observed that the assessee should establish that he is an eligible assessee engaged in an eligible business and such business should have a total turn over or a gross receipt. Admittedly, the assessee who was an individual in that case was not carrying on any business and the remuneration and interest received by the assessee from the partnership firm cannot be termed to be a turn over of the assessee (individual). The court concluded that the Revenue was right in its contention that remuneration and interest from the partnership firm cannot be treated as gross receipt of the assessee. We respectfully agree with the view expressed by the Hon’ble Madras High Court. In fact, in the case at hand, petitioner’s case is the same that petitioner’s remuneration from the partnership cannot be treated as gross receipt in profession.In the circumstances, in our view petitioner’s stand that she was not required to get her accounts audited under Section 44AB, is correct. - Decided in favour of assessee.
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