TMI Blog1980 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal was within its jurisdiction in finding that the provisions of section 154 would not apply to the assessee's case ? " The assessee is a medical practitioner having taken a post-graduate degree. For the assessment year 1972-73, he claimed development rebate on X-Ray machines amounting to Rs. 13,013. The machinery had been purchased on 18th February, 1972, at a cost of Rs. 86,754 and was installed in the relevant assessment year and used in the same year. The ITO allowed the claim for development rebate. Later on, he purported to rectify the assessment order by taking proceedings under s. 154 on the ground that there was a mistake apparent from the record. The assessee objected to the rectification proceedings and contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to Bench decision of this court in Dr. P. Vadamalayan v. CIT [1969] 74 ITR 94. Learned counsel for the Commissioner, however, contended that subsequent to this decision there were certain decisions of the Supreme Court which would be required to be taken into account and that the matter required consideration in the light of those judgments. In deference to his argument, we proceed to consider the matter afresh. In Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548, the Supreme Court was concerned with the question whether the Bangalore Water Supply Board and certain other entities could be considered to be an industry within the meaning of the Industrial Disputes Act so that the provisions of that Act could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stribution and their services cannot be described as material services." Krishna Iyer J. was not prepared to agree with these observations and it was stated that where there was systematic activity organised by cooperation between the employer and the employees for production of goods and services calculated to satisfy human wants and wishes, prima facie there was an industry in that enterprise and that the true focus was functional and the decisive test was the nature of the activity with special emphasis on the employer-employee relations, and if the organisation was a trade or business it did not cease to be one because of philanthropy animating the undertaking. The result was that the distinction between a trade and a profession was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contextual requirements of the statute. Learned counsel for the Commissioner contended that s. 28 contemplated a dichotomy between a business and a profession as the two expressions have been separately used in the said section and it shows that the Legislature contemplated the two being different. We consider that this argument does not take him any far. It is possible for a professional man to have a business or for a businessman to have a profession. Therefore, what we have to consider is the nature of the activity rather than any abstract construction of the term " business " or " profession ". In Dr. P. Vadamalayan v. CIT [1969] 74 ITR 94 (Mad), there are passages which throw light on this question of, a professional man having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diture involved in the purchase of X-Ray films, chemicals, salary and bonus to technicians and electricity charges. The way in which this activity is carried on is in no way different from a non-qualified person carrying on radiological institute. The mere circumstance that a professional person has, as an adjunct to his professional activities, such an institute does not disable him from running it as a commercial venture and earning income therefrom. For instance, a medical practitioner can have a medical shop in which medicines are sold not only to his patients, but also to others who come and ask for them. In such a case, it cannot be gainsaid that he was carrying on a trade as such. In this case, there is no finding that the persons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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