TMI Blog2022 (3) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JAMADAR, JJ Dr. K. Shivram, Sr. Advocate i/b Mr. Rahul K. Hakani for Petitioner Mr. Suresh Kumar for Respondents P.C. : 1. Petitioner is impugning an order dated 25th March 2021 passed by respondent no.1 u/s 264 of the Income Tax Act 1961 (the said Act), rejecting the revision application filed by petitioner challenging the order dated 25th February 2020 passed under Section 139(9) by respondent no.2 treating the return of income filed by petitioner for A.Y.-2017-2018 as invalid. The reason why 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired under Section 44AB of the Act. 5. On or about 3rd February 2021, petitioner filed revision application under Section 264 of the Act impugning the order passed by respondent no.2. Petitioner made detailed submissions with the application. Respondent No.1 issued a notice dated 17th March 2021 thereby calling upon petitioner to show cause why revision application under Section 264 should not be rejected. By a letter dated 22nd March 2021, petitioner responded to the show cause notice. On 25th March 2021, respondent no.1 passed order dismissing the revision application, rejecting petitioner s submissions and upholding the order of respondent no.2. While doing so, respondent no.1 has relied upon decision of ITAT Kolkata in Amal Ganguli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent no.2 and relied upon the order of ITAT in Amal Ganguli. Mr. Suresh Kumar submitted that the order of ITAT in Amal Ganguli has not been entirely reversed by the High Court and only the penalty order was set aside because the Assessing Officer had not obtained necessary approval before issuing penalty order. Mr. Suresh Kumar submitted that the Hon ble Court remanded the matter to the Assessing Officer for passing the penalty order after obtaining necessary approval from the competent authority. Thus, the claim of petitioner that judgment of ITAT in Amal Ganguli has been reversed, is not correct. 10. The provision applicable to petitioner is clause (b) of Section 44AB which provides, every person carrying on profession shall, if his g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income Tax (2021) 430 ITR 391 (MAD). In that case, the assessee was an individual and a partner in some partnership firms. The assessee filed his return of income of assessment year under consideration admitting a total income of ₹ 43,53,066/-. The assessment was selected for scrutiny and it was finalised under Section 143(3) of the Act, disallowing the claim made by the assessee under Section 44AD of the Act. While filing the return of income, the assessee had applied the presumptive rate of tax at 8% under Section 44AD and returned ₹ 4,68,240/- as income from the remuneration and interest received from the partnership firm. The Assessing Officer did not agree with the assessee and opined that Section 44AD is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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. 11. In the circumstances, in our view petitioner s stand that she was not required to get her accounts audited under Section 44AB, is correct. 12. Petition, therefore, is allowed in terms of prayer clauses (a) and (b) which read ..... X X X X Extracts X X X X X X X X Extracts X X X X
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