2025 (11) TMI 148 - AT - Income Tax

Remuneration under s.28(v) is business income; expenses including motor car depreciation allowed under ss.32 and 37

ITAT, Delhi (AT) held that remuneration received by a partner from a firm under s.28(v) is business income, so expenditures incurred exclusively to earn ... Eligibility to claim business expenditure from salary received by the assessee from partnership firm - Rule of consistency - HELD THAT:- Section 28(v) of the Act, allows any interest salary, bonus, remuneration by whatever name called received by a partner from the partnership firm to be treated as business income. Consequently, any expenditure incurred by the partner exclusively and solely for the purpose of earning such business income is an allowable expenditure u/s. 32 and 37 of the Act. The assessee has been claiming such expenditure from salary received from the partnership firm in the past. Rule of consistency demands that if the expenditure in the nature of depreciation on motor car, etc. has been allowed to the assessee in the past, the same should be allowable in the subsequent assessment year as well. Thus, in light of the facts and provision of section 28(v) of the Act, have no hesitation in holding that the expenditure incurred by the assessee wholly and exclusively for the purpose of business and profession is a allowable expenditure. Assessee submitted that business expenditure from salary was claimed by the other partner of partnership firm for the impugned assessment year. The AO allowed such expenditure in the case of other partner. Taking into consideration entire facts of the case and legal position, appeal of the assessee is allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether remuneration (interest, salary, bonus, commission or remuneration by whatever name called) received by a partner from a partnership firm is to be treated as business income for the partner under the statutory provision corresponding to section 28(v) of the Income Tax Act. 2. Whether expenditure incurred by the partner (travel, telephone, depreciation, repair and maintenance, fuel, driver salary, etc.) wholly and exclusively for the purpose of earning such remuneration is allowable as business expenditure under the statutory provisions corresponding to sections 32 and 37 of the Income Tax Act. 3. Whether principles of consistency and treatment allowed to other partners in contemporaneous assessments are relevant to admitting such expenditure in the assessment under appeal. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Characterisation of partner's remuneration as business income Legal framework: The statutory provision treats any interest, salary, bonus, commission or remuneration by whatever name called received by a partner from the partnership firm as income of the partner chargeable under the head business/profession (provision corresponding to section 28(v)). Precedent treatment: The Tribunal relied on an authoritative decision of the highest court (referred to in the judgment) that has recognized the characterisation of partner's remuneration as business income. The Tribunal also relied on earlier tribunal decisions dealing with similar factual matrices where partner-remuneration was so characterized. Interpretation and reasoning: The Tribunal reasoned that where the statute explicitly brings such receipts within business income, the correct legal character is business/profession rather than salary income in the conventional sense. The income must therefore be regarded as arising from the partner's business or profession and not as an employment income subject to the distinct restrictions applicable to salary allowances. Ratio vs. Obiter: The holding that partner-remuneration falls within business income under the statutory provision is ratio and determinative for the appeal; references to prior decisions served as precedents followed to support that proposition, not as obiter. Conclusion: The Tribunal concluded that the remuneration received by the partner from the firm is business income under the statutory provision and so treated in the assessment computation. Issue 2: Allowability of expenditure incurred wholly and exclusively for earning partner's remuneration Legal framework: Provisions corresponding to sections 32 (allowance for depreciation) and 37 (allowance for other business expenditures) permit deduction of expenditure incurred wholly and exclusively for purposes of business or profession from business income. Precedent treatment: The Tribunal followed prior tribunal decisions addressing claims by partners to deduct such expenditures against remuneration characterized as business income, and the highest court's pronouncements affirming the treatment of partner-remuneration as business income. Interpretation and reasoning: Given the statutory characterisation in Issue 1, expenditures incurred wholly and exclusively for the purpose of earning that business income logically fall within allowable deductions under the provisions permitting business expenditure and depreciation. The Tribunal applied the test of 'wholly and exclusively' for business purpose and found the claimed items (travel, telephone, depreciation on motor car, repair, fuel, driver salary, etc.) met that test on the material before it. Ratio vs. Obiter: The determination that such expenditures are deductible when incurred wholly and exclusively for earning partner-remuneration is the ratio for the tax treatment at issue. Observations about the nature of individual expenditure items and factual findings as to their purpose are operative parts of the decision rather than obiter. Conclusion: Expenditure incurred wholly and exclusively for the purpose of earning the partner's remuneration is allowable as deduction under the business/profession head, including depreciation where applicable. Issue 3: Application of rule of consistency and contemporaneous treatment of other partners Legal framework: While not a statutory rule, the principle of consistency in taxation and the need for uniform treatment of similarly placed taxpayers in contemporaneous assessments informs administrative fairness and equity. Precedent treatment: The Tribunal referenced earlier practice and decisions where similar claims by the same assessee were accepted in prior years, and where other partners in the same firm were granted similar deductions in the same assessment year. Interpretation and reasoning: The Tribunal observed that where the assessee has consistently claimed such expenditures in prior years and they have been allowed, or where another partner in the same firm has received allowance of similar expenditure for the same year, denying the claim in the present assessment would violate the rule of consistency and create anomalous treatment. The Tribunal used this as a supporting ground, in addition to the statutory and precedent-based analysis, to allow the deduction. Ratio vs. Obiter: The invocation of consistency and contemporaneous treatment is ancillary to the primary statutory/legal analysis. It functions as a supporting ratio in this decision to justify allowance; it is not an obiter remark but a contributory basis for the outcome. Conclusion: The Tribunal accepted the consistency argument as reinforcing the statutory entitlement to deduction and allowed the expenditure, noting that similar treatment afforded in past years and to another partner in the same year supported the claim. Cross-reference and overall conclusion Given the statutory characterisation of partner-remuneration as business income, the applicable provisions permitting deduction of expenditure wholly and exclusively incurred for business, the consistency of earlier allowances, and controlling precedents affirmed by higher judicial authority, the Tribunal concluded that the claimed business expenditures are allowable against the remuneration received by the partner. The appeal was therefore allowed.