1965 (2) TMI 121 - HC - Income Tax

Summary

Issues:
1. Disallowance of salary paid to a partner under section 10(4)(b) of the Income-tax Act.
2. Whether a direction under section 33(5) should have been given to eliminate the salary paid to the partner in working out the share of income of the Hindu undivided family.

Analysis:

Issue 1: Disallowance of salary paid to a partner under section 10(4)(b) of the Income-tax Act:
The case involved a partnership firm composed of three partners, one of whom was paid a salary of Rs. 6,000 as per an agreement due to his role as a manager of his joint Hindu family. The Income-tax Officer disallowed this deduction under section 10(4)(b) of the Act, which prohibits any allowance for payment of salary or remuneration made by a firm to any partner. The Appellate Assistant Commissioner excluded the salary from partnership income, but the Appellate Tribunal reversed this decision, stating that section 10(4)(b) applied regardless of the profit's destination. The High Court held that the payment to a partner, irrespective of the capacity, falls within the scope of section 10(4)(b) and disallowed the deduction, citing precedents that support this interpretation.

Issue 2: Direction under section 33(5) to eliminate the salary paid to the partner in working out the share of income of the Hindu undivided family:
The Tribunal did not address the second question regarding the direction under section 33(5) to exclude the partner's salary from the family's income share, deeming it irrelevant to the current inquiry. However, the High Court found that the Tribunal should have considered this question, especially since an allocation was made by the Income-tax Officer, making it a final decision. Consequently, the High Court remanded this issue back to the Tribunal for a proper determination, emphasizing the importance of addressing this aspect of the case.

In conclusion, the High Court upheld the disallowance of the partner's salary deduction under section 10(4)(b) but directed the Tribunal to reconsider the issue of giving a direction under section 33(5) regarding the exclusion of the salary from the family's income share. The judgment clarified the application of the Income-tax Act provisions and highlighted the necessity of addressing all relevant questions in tax assessments to ensure a comprehensive and accurate determination of tax liabilities.