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Income Tax

Comparison of Section 26 "Income under head Profits and gains of business or profession" between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

20 August, 2025

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Section 26 Income under head "Profits and gains of business or profession".

Income-tax Act, 2025 [As Passed]

At a Glance

These documents present the enacted Section 26 of the Income-tax Act, 2025 ["As Passed"] (Document 1) and an earlier draft of Clause 26 in the Income Tax Bill, 2025 - Old Version (Document 2). Both provisions charge income under the head "Profits and gains of business or profession" and set out an inclusive list of items treated as business/professional income. The changes between the two texts are largely phrasing and cross-reference adjustments, with a few substantive drafting shifts that may affect the scope of recapture and the cross-referenced deduction regime. Affected parties include taxpayers carrying on business or profession, partners and firms, and the tax department; effective date or commencement is Not stated in the document.

Background & Scope

Statutory hooks: both texts are presented as Clause/Section 26 under the Income Tax Bill/Act, 2025 and fall under the Part D heading "Profits and gains of business or profession". The clause(s) seek to define income chargeable under that head and provide an inclusive list of items to be regarded as such income. The texts contain internal cross-references to other provisions - e.g., section 35(e), section 35AD of the Income-tax Act, 1961, section 46 and in the older draft a reference to "Chapter IV-D". Definitions beyond the inclusive list are Not stated in the document. The documents do not state commencement/notification details.

Statutory Provision Mode

Text & Scope

Both versions establish that income from any business or profession carried on during the tax year is chargeable under the head "Profits and gains of business or profession". Each provides an inclusive list (sub-section (2)) covering: profits/gains of business or profession; compensation/payments on termination/modification of management/agency/contract; compensation for vesting management in Government; income of trade/professional associations for services to members; profits on sale of licences or export incentives; value of benefits/perquisites from business/profession; partner remuneration/amounts from firm; sums for not carrying out business activity or for not sharing know-how/intangible rights; Keyman insurance proceeds; fair market value of inventory when converted/treated as capital asset; and specific recapture where a capital asset (other than land/goodwill/financial instrument) is demolished/destroyed/discarded/transferred and its whole expenditure was allowed as a deduction under specified provisions.

Interpretation

The texts adopt an inclusive definition approach: items listed are expressly brought into business/professional income. The language used (e.g., "shall include") indicates a non-exhaustive list as typical in tax charging provisions. The enacted text shifts certain cross-references and expands the recapture reference to other statutory provisions (see below). Legislative intent as an overarching aim is to capture receipts related to business/professional activity and to provide recapture rules where capital allowances/deductions have been previously claimed - explicit legislative intent beyond the text is Not stated in the document.

Exceptions/Provisos

The provision contains specific carve-outs in sub-clause (h)(i)(A) and (B) excluding (A) sums received on transfer of rights chargeable under the head "Capital gains" and (B) compensation from the Montreal Protocol multilateral fund under terms agreed with Government of India. Sub-section (4) excludes rental income from letting of residential house by the owner from this head and directs that such income be charged under "Income from house property". Other general exceptions or thresholds are Not stated in the document.

Illustrations

  • Example 1: A partner receives salary/commission from the firm. The payment is included under clause (g) and is to be treated in accordance with the extent allowed under the deduction cross-reference (Document 1: "section 35(e)"; Document 2: "Chapter IV-D").
  • Example 2: A company sells an import licence and realises a profit on sale; this profit is included under clause (e) as business income.
  • Example 3: Machinery (a capital asset other than land/goodwill/financial instrument) on which the whole expenditure was allowed under the cited deduction provision is demolished and some sum is received; clause (k) brings the receipt into business income (but the governing deduction reference differs between the texts).

Interplay

Both variants cross-refer to other provisions for deductions and for recapture. The enacted text explicitly references section 35(e) and u/s 35AD of the Income-tax Act, 1961 alongside section 46 of the 2025 Act for recapture scenarios; the earlier draft references "Chapter IV-D" for partner remuneration and refers only to section 46 for recapture. Any interplay with Rules, Notifications or Circulars is Not stated in the document.

Differences Between Documents and Practical Impact

  • Opening paragraph/sub-section (1) wording: Old draft states "The income from any business or profession carried on by the assessee at any time during the tax year shall be chargeable...". Enacted version states "The incomes referred to in sub-section (2) shall be chargeable...".
    • Practical impact: drafting shift narrows the immediate charging phrase to the items enumerated in sub-section (2), while the prior draft framed the charge as broader "income from any business or profession". The practical interpretive difference is limited because both texts ultimately list the items; the enacted wording may emphasise the inclusive list as the operative charge. The precise legal effect is contingent on interpretive practice and is Not stated in the document.
  • Clause (e): Old text uses "input licence"; enacted text uses "import licence".
    • Practical impact: this is a material textual difference. If "input licence" in the old draft was unintended or a drafting error, the enacted text clarifies that profits on sale of import licences are included. The documents do not state whether "input licence" was an error or intended; therefore, the practical effect is that the enacted text clearly captures profits on sale of import licences and similar export incentives. Any consequences for licences termed "input licence" are Not stated in the document.
  • Clause (g) - cross-reference for partner payments: Old draft refers to deduction "under Chapter IV-D" as a deduction in computing the firm's income; enacted text refers to "section 35(e) as a deduction in computing the income of the firm".
    • Practical impact: this is a substantive cross-reference change which may alter how partner payments are assessed against firm deductions. Whether section 35(e) reproduces, narrows or expands the former Chapter IV-D rules is Not stated in the document; stakeholders must compare the referenced provisions to determine precise tax treatment and availment of deductions.
  • Clause (h)(ii) - scope of excluded consideration verbiage: Old draft ends with "information or technical know-how likely to assist..." whereas enacted text reads "information or technique likely to assist...".
    • Practical impact: marginal wording change; potential interpretive nuance between "technical know-how" and "information or technique" may slightly broaden or shift the class of protected items, but the documents provide no legislative clarification on intent.
  • Clause (j) - manner of valuation: Old draft uses "determined in the manner, as prescribed"; enacted text uses "determined in the manner, as may be prescribed".
    • Practical impact: enacted wording explicitly contemplates rule-making power ("may be prescribed"), but both formulations are typically used to enable subordinate legislation; the practical change is minimal and procedural - specific rules are Not stated in the document.
  • Clause (k)(ii) - recapture reference: Old draft brought sums into business income where whole of the expenditure had been allowed as a deduction "u/s 46". Enacted text broadens the reference to "u/s 35AD of the Income-tax Act, 1961 or section 46 of this Act."
    • Practical impact: the enacted version expressly captures cases where capital asset expenditure was allowed u/s 35AD (1961 Act) in addition to section 46 of the 2025 Act, thereby broadening recapture to assets benefiting from section 35AD allowances. This is a substantive expansion of recapture scope; however, the precise operation depends on the text of section 35AD and section 46, which are Not stated in the document.
  • General drafting and punctuation differences: There are minor editorial and structural differences (e.g., "by whatever name called" vs "by whatever named called", placement of commas and hyphens).
    • Practical impact: mostly stylistic, though consistent drafting reduces interpretive ambiguity.

Practical Implications

  • Compliance and risk areas: Taxpayers should note the broadened recapture reference (inclusion of u/s 35AD of the Income-tax Act, 1961) - assets whose costs were wholly allowed under such provisions may generate business income upon demolition/destruction/discard/transfer. Firms and partners must review the applicable deduction cross-reference (section 35(e) in enacted text) when accounting for partner remuneration and when determining firm taxable income. The documents do not provide procedural guidance or transitional rules; transitional treatment is Not stated in the document.
  • Record-keeping/evidence: Where receipts arise from termination/modification of management/agency/contract, sale of licences, non-competition agreements, or Keyman insurance proceeds, taxpayers should retain contracts, calculation workings, valuations (for fair market value of inventory converted to capital asset), details of allowances claimed u/s 35AD or section 46, and firm resolution/partnership deeds evidencing partner payments - the document does not prescribe specific records but the inclusive list implies evidentiary needs relevant to these items.

Key Takeaways

  • Both texts adopt an inclusive list of items treated as income from business or profession; enacted text rephrases the charging language to focus on the items enumerated in sub-section (2).
  • Enacted text clarifies "import licence" (instead of "input licence" in draft), which clarifies inclusion of profits on sale of import licences/export incentives.
  • Cross-reference for partner remuneration shifted from "Chapter IV-D" (draft) to "section 35(e)" (enacted), which may affect deduction mechanics - compare the referenced provisions to determine impact.
  • Recapture scope expanded in the enacted text to include cases where whole expenditure was allowed u/s 35AD of the Income-tax Act, 1961, in addition to section 46 - potentially broader taxability on demolition/destruction/discard/transfer of certain capital assets.
  • Several wording and drafting adjustments are editorial in nature; where substantive differences exist, the documents do not supply the surrounding provision texts or legislative history to resolve interpretive issues.

Full Text:

Section 26 Income under head "Profits and gains of business or profession".

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Acts Income Tax
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