TaxTMI 
TaxTMI 
2024 (2) TMI 106
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....the Appellant or alternatively, section 56(2)(xi) against the Appellant] is against fundamental prudence of Income tax laws. It is settled law that heads of income are mutually exclusive (i.e. if an Assessee cannot be brought under a particular head of income and is not taxable by operation of the provisions for that head, she cannot be simultaneously/consecutively brought to tax under another head) [refer Nalinikant Ambalal Mody v. S.A.L. Narayan Row, ClT 1966 (61) ITR 428 (Se)]. That the present matter Is not covered under section 28(ii)(e) of the Act. Hence, the same cannot be then brought to tax under 56(2)(xi) of the Act by adopting an 'either! or' approach as done against the Appellant." 3. Representatives of both the sides were heard at length. Case records carefully perused. Relevant documentary evidence brought on record duly considered in light of Rule 18(6) of the ITAT Rules. 4. Briefly stated, the facts of the case are that the assessee is an individual who filed her Return of Income declaring an income of Rs. 18,51,090/- on 19.12.2020. Return was selected for scrutiny assessment and accordingly, statutory notices were issued and served upon the assessee. ....
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....x on the said compensation, yet later on, she changed her stand and claimed refund. The ld. DR further stated that even before this Tribunal, the assessee is claiming to be a professional and yet the said compensation is not claimed as professional receipt. 12. We have given thoughtful consideration to the rival contentions. The root cause of the quarrel is clause (vi) of the Agreement place at page 118 of the Paper Book which, inter alia, provides: "This agreement can be terminated by both sides through a notice of six weeks at the end of an annual quarter. If not renewed by January 31,2000, the agreement will end of April 30, 2000." 13. Vide letter dated 22.02.2012, placed at pages 130 and 131 of the Paper Book, the assessee was informed as under: 14. Non renewal of the contract was challenged by the assessee in the Labour Court at Hamburg for declaration of her status as permanent employee of Spiegel Verlag. The Labour Court at Hamburg dismissed the claim as "not admissible" holding that there was no legitimate interest to take legal action. 15. A writ was filed before the Hon'ble High Court of Delhi by Spiegel Verlag. The terms of reference as formulate....
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....or profession" has been inserted by the Finance Act, 2016 w.e.f 01.04.2017 which makes the intent of the Legislature absolutely clear that the Legislature wanted the insertion of the word "Profession" alongwith "Business". 22. Our view is fortified by the decision of the Hon'ble Supreme Court in the case of G.K. Choksi & Co. 295 ITR 376 wherein the facts were as under: "The assessee, a firm of Chartered Accountants constructed a building for the purpose of residence for its low paid employees and claimed initial depreciation @ 40% under Section 32(1)(iv) of the Act. The Income Tax Officer (ITO) vide its order dated 15.1.1985 rejected the claim of the assessee-appellant on the ground that the said provision is applicable to an assessee carrying on "business" and the same is not available to a professional. On appeal, the Commissioner [Appeals] allowed the claim of the assessee. On further appeal, the Tribunal restored the order of the Assessing Officer. On reference the High Court upheld the same" 23. And the Hon'ble Supreme Court held as under: Section 32(1) of the Act does not help the appellant in any way to construe the word "business" ap....
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.... In fact, wherever the legislature intended that the benefit of a particular provision should be for both business or profession, it has used the words "business or profession" and wherever it intended to restrict the benefit to either business or profession, then the legislature has used the word either "business" or "profession", meaning thereby that it intended to extend the benefit to either "business" or "profession", i.e., the one would not include the other. The word "business" occurring in clause (iv) of Section 32(1), by no stretch of imagination, can be said to include "profession" as well. If the expression "business" is interpreted as including within its scope "profession", it would not mean that the lacuna has been made good by giving a wider interpretation to the word business. There is nothing in Section 32(1)(iv) which envisages the scope of word "business" to include in it "profession" as well. If the expression "business" is interpreted to include within its scope "profession" as well, it would be doing violence to the provisions of the Act. Such interpretation would amount to first creating an imaginative lacuna and then filling it up, which is not perm....
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....to retrenchment. 31. Considering the facts of the case in totality, we are of the considered view that provisions of section 28(ii)(e) do not apply on the given facts and therefore, the orders of the lower authorities are erroneous in law. 32. Now coming to the applicability of the provisions of section 56(xi) of the Act, the same read as under: "Any compensation or other payment due to or received by any person by whatever name called in connection with termination of his employment or modification of the terms and conditions relating thereto." 33. Here also, reference is termination of employment. For our detailed reasons given in herein above, we are of the opinion that this section is also not applicable on the given facts. 34. Considering the facts of the case from all possible angles, we do not find any merit in the impugned addition. Therefore, the Assessing Officer is directed to delete the same. 35. Before parting, the allegation of the ld. DR that the assessee is taking contradictory stand before the lower authorities is factually incorrect. Firstly, the assessee has never shown the compensation of Rs. 3 crores in her profit and loss account and on....