1998 (9) TMI 111 - AT - Income Tax

Partners' Salary Disallowed as Share of Profits, Not Salary under IT Act

Assistant Commisioner Of Income-Tax. Versus Punjab Salt Supplier.

Assistant Commisioner Of Income-Tax. Versus Punjab Salt Supplier. - ITD 069, 191, TTJ 065, 055, Issues:1. Disallowance of salary paid to partners in their individual capacity under section 40(b) of the IT Act.2. Interpretation of the legal position regarding salary payment to partners.3. Application of Andhra Pradesh High Court judgment in N. T. R. Estate v. CIT.4. Analysis of judgments in Brij Mohan Das Laxman Das v. CIT and Suwalal Anandilal Jain v. CIT.Issue 1: Disallowance of salary paid to partners in their individual capacity under section 40(b) of the IT Act:The Assessing Officer disallowed the salary of Rs. 41,600 paid to partners in their individual capacity, citing section 40(b) of the IT Act. The appellant argued that the salary was based on personal skill and efforts, not as partners in their HUF capacity. The CIT(A) agreed with the appellant, referencing the Andhra Pradesh High Court judgment in N. T. R. Estate v. CIT, which was upheld by the Supreme Court. The appellant provided detailed reasons, including the absence of salary in the partnership deed, the active involvement of the partners, and the lack of profit-sharing ratio. The Supreme Court's decision in Brij Mohan Das Laxman Das v. CIT and Suwalal Anandilal Jain v. CIT further supported the appellant's position.Issue 2: Interpretation of the legal position regarding salary payment to partners:The Tribunal analyzed the legal position regarding salary payment to partners, emphasizing that a partner cannot be an employee of the firm due to the nature of partnership. The Tribunal highlighted that a partner's remuneration is a share of profits for their contribution, not a salary as in an employment contract. Quoting Lindley on the Law of Partnership, the Tribunal explained the legal restrictions on a partner being a debtor or creditor of the firm and being employed by the firm. The Tribunal clarified that a partner's role is distinct from that of an employee, based on the principles of partnership law.Issue 3: Application of Andhra Pradesh High Court judgment in N. T. R. Estate v. CIT:The Tribunal considered the Andhra Pradesh High Court judgment in N. T. R. Estate v. CIT, which recognized separate capacities of an individual as an individual and as a representative of their HUF. The Tribunal noted that the Supreme Court upheld this judgment, settling the controversy around disallowance of salary/interest to partners in their individual capacity. The appellant successfully argued that the salary paid was based on personal skill and efforts, not as representatives of their HUF, in line with the legal interpretations provided by the courts.Issue 4: Analysis of judgments in Brij Mohan Das Laxman Das v. CIT and Suwalal Anandilal Jain v. CIT:The Tribunal referenced the judgments in Brij Mohan Das Laxman Das v. CIT and Suwalal Anandilal Jain v. CIT to support the appellant's position. These judgments highlighted that a firm is not a legal person, and a partner's remuneration is a share of profits, not a salary as in an employment contract. The Tribunal reiterated the distinction between a partner's role and that of an employee, emphasizing the legislative recognition of different capacities an individual may hold, particularly in relation to section 40(b) of the IT Act. The Tribunal upheld the appellant's arguments based on these legal precedents.In conclusion, the Tribunal dismissed the revenue's appeal, confirming the order passed by the CIT(A) regarding the disallowance of salary paid to partners in their individual capacity under section 40(b) of the IT Act.