TMI Blog2022 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional fees diverted by overriding title to retired partners in terms of the Partnership Deed. 1.2 The learned CIT(A) erred in not appreciating the facts in right perspective and also erred in following the Commissioner of Income Tax (Appeals) order dated 30 March 2017 for the AY 2011-12. 1.3 The learned CIT(A) ought to have appreciated that as per clause 11.13 read with clause 11.14 of the Partnership Deed, the said amount was not income of the appellant firm as it was diverted by overriding title. 1.4 The learned CIT(A) erred in concluding that the payment to retired partners is an application of income without considering the fact that there is a prior charge on the income by way of superior title and therefore it is not an income of the appellant. 1.5 Without prejudice to the above, the learned CIT(A) erred in confirming the finding of the Assessing Officer that payment made to retired partners is not allowable as deduction under section 37(1) of the Act. 1.6 The learned CIT(A) erred in confirming finding of the Assessing Officer that the said payment has to be disallowed under section 40(a)(ia) of the Act as no tax is deducted. The learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T in ITA No.6749/Del/2015 (Assessment year 2010-11) - order dated 29 January 2021 iv. M/s Deloitte Haskins Sells v. ACIT in ITA No.2927/Del/2013 (Assessment year 2009-10) - order dated 23 October 2018. v. DCIT v. M/s Deloitte Haskins Sells in ITA no.587 588 /Kol/2016 (for AY 2010-11 and AY 2011-12) vi. DCIT v. M/s Deloitte Haskins Sells in ITA no.651 /Kol/2017 (for AY 2012-13) dated 28 September 2018 vii. ACIT v. M/s Deloitte Haskins Sells (ITA no.682/AHD/2016) viii. DCIT v. Deloitte Haskins Sells, Ahmedabad ITA no. 1983/AHD/2017 for AY 2013-14 and ITA no. 1984/AHD/2017 for AY 2014-15 ix. ACIT v. Arthur Anderson Co. [2006] 5 SOT 393 x. Commissioner of Income- tax v. Spencers and Co. Ltd. [2014] 49 taxmann.com 318 (Madras HC) xi. M/s Deloitte Haskins Sells v. ACIT in ITA Nos.3715/Del/2017 (Assessment year 2011-12) - order dated 15 January 2021 xii. M/s C.C. Chokshi Co in ITA no.209 and 193 of 2008 and A. F. Ferguson Co. in ITA no. 87 of 2011(Bom. HC) xiii. in ITA No. 2077/MDS/2016 (Deloitte Haskins sells- Assessment year 2011 -12) and ITA No.2079/MDS -2016 for the AY 2011-12 xiv. C.C. Chokshi Co. (1TA No. 492 to 495/Mum/2003) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted facts are that the partnership firm envisaged payment to a outgoing partner on the basis that the partner would have rendered service during his tenure as a partner of the firm but could not enjoy the fruits thereof on account of the fact that the work having remained incomplete, the concerned client had not been billed for the work already done. The Hon ble Bombay High Court held that in similar circumstances, the courts have held that payment to the partner would amount to diversion of income at source by overriding title. The Ld. senior departmental representative could not point out any judgment to the contrary on this issue as well and, therefore, in view of the ratio of the decisions as aforesaid and as relied upon by the Ld. Authorized Representative, on identical facts, respectfully following the above cited judicial precedents, we allow ground No.3 of the assessee s appeal in Assessment Year 2011-12 and direct the Assessing Officer to delete the disallowance. However, the Ld. Sr. DR relied upon the order of the Assessing Officer. (D) We have heard the representatives of both sides on merits of the aforesaid addition of Rs.1,37,75,514/-. We have perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in paragraphs 11 to 17 of the said order and the same are being reproduced herein under for a ready reference: 11. We have given thoughtful consideration to the orders of the authorities below. It is not in dispute that the assessee has been paying subscription charges since Assessment Year 2007-08. It appears that this payment of subscription charges has been questioned only in the year under consideration. The observations of the Assessing Officer while disallowing the claim of subscription charges have been mentioned elsewhere. 12. First objection relates to the PAN of the DTT. The Assessing Officer observed that the assessee has paid subscription fees to a company registered in USA. According to the Assessing Officer, it cannot be claimed as business expenditure. In our understanding of law, such observation of the Assessing Officer does not hold any water, because under the Companies Act, a company can be incorporated under any other law also. The Assessing Officer has further mentioned that in the partnership deed, there is no clause relating to payment of DTT. We fail to understand the necessity of such clause in the partnership deed. 13. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational cooperation and cohesion among the Member Firms; (b) to assure that their practices shall conform to professional standards of the highest quality; (c) to advance the international and national leadership of the Member Firms in rendering Professional Services; and to perform all other functions incidental to the above purposes. Article 8 deals with financial matters and Clause (b) of the said Article reads as under:- (a) Each Member Firm shall contribute to ward the budgeted operating expenses of the Verein for each fiscal Year in such proportions as shall be allocated by the Board of Directors; and (b) The amount allocated to each Member Fir m shall be based upon aggregate revenues and such other f actors, if any, as Delotte Haskins and Sells IT A No.: 5096/Mum/2011 ITA No.: 5097/Mum/2011 ITA No.: 5094/Mum/2011 may be determined by the Board of Directors and approved by the Member Firms. and Article 12 deals with dissolution, which reads as under:- 12.1 By Resolution a dissolution of the Verein shall occur if a resolution to that effect is, adopted by the Member Finns. 12.2 Distributions. Upon dissolution of the Verein, any liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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