2008 (12) TMI 275 - AT - Income Tax

Disallowance of remuneration to the partners - salary not quantified in the clause of the partnership deed - manipulated partnership deed - Original partnership deed there was no specification or quantification of the salary to partners, however, subsequently, a page was changed and the assessee has attempted to mislead the authorities by replacing p. 5 of partnership deed - Ld DR explained that the change was made so as to quantify the amount of salary to the partners and in this manner the assessee has obtained relief - CIT(A) granted relief to the assessee on the basis of a manipulated partnership deed therefore the said relief deserves to be quashed. HELD THAT - On plain reading of Sec 40 cl. (b), it is understood by us that these sections do not make it mandatory to quantify the amount of salary in one of the clauses of the partnership deed because of the main reason that the monetary limit or ceiling is otherwise prescribed in the statute itself. In our humble understanding of law since the statute has used the term authorize therefore, the CBDT has no jurisdiction to substitute the term authorize by the term quantify . While interpreting the clause of a statute there is no scope for importing into the statute some other words which are not there, Such an interpretation, if any made, by any of the authority would amount to an amendment in the statute which is a prerogative of the legislative body i.e. Hon'ble Members of the Parliament. We are very well aware that even if there be a situation of casus omissus even then the defect can be cured only by a proper legislation and not by any interpretation. To our understanding, there appears no justification to deviate from the general principles of interpretation according to which the intention of the legislature is to be interpreted from the terms used or the words contained in a statute. It is also not a case that the impugned taxing provisions were ambiguous and therefore capable of more than one interpretation. To us, there was no ambiguity in the language of the said section, hence there is no question of a beneficial interpretation to either side. We are of the firm view that it is not permissible to add words into a taxing provisions which are not there or exclude words which are there. So, the words contained in a provision must be given a natural meaning as commonly understood in legal parlance. For this proposition, we place reliance on CED vs. R. Kanakasabai Ors. 1973 (3) TMI 55 - SUPREME COURT . Impact of Manipulated partnership deed - The vehement contention was that once the authorization was admitted in the said deed which was claimed to be with the AO then also the assessee deserves due relief. It was also contended that the assessee had no intention of wrongful gain because he was entitled for the claim of salary on the basis of the authorization made in the partnership deed - HELD THAT - There are force in this argument of ld AR because in our considered opinion no gainful purpose would be served to the assessee, as far as the question of the allowance of salary to partners in terms of s. 40(b) was concerned. In the result, we hereby affirm the findings of the ld CIT(A) and dismiss the grounds of the Revenue. Rest of the grounds not seriously contested hence. hereby dismissed. Appeals dismissed.

Summary

Issues:
1. Allowance of salary to partners based on partnership deed not submitted along with the return of income.
2. Deletion of addition of unsecured loans in assessment or reassessment proceedings under section 147.

Analysis:

Issue 1:
The appeals were filed by the Revenue challenging the order of CIT(A) allowing salary to partners based on a partnership deed not submitted along with the return of income. The AO disallowed the claim of salary to partners as the partnership deed did not specify the salary payable to partners. The AO referred to CBDT Circular No. 739 and concluded that the firm was not entitled to the deduction of salary to partners. However, the CIT(A) held that the partnership deed filed by the assessee was genuine and authorized the payment of salary to partners. The Revenue contended that the partnership deed was manipulated to quantify the salary, but the CIT(A) decision was upheld. The ITAT Pune-A analyzed the provisions of section 40(b) of the IT Act and emphasized that the statute does not mandate quantification of salary in the partnership deed. The ITAT clarified that CBDT cannot issue circulars that alter the provisions of the IT Act. The ITAT dismissed the Revenue's appeal, affirming the CIT(A)'s decision to allow the deduction of salary to partners based on the partnership deed.

Issue 2:
The AO made an addition of unsecured loans during assessment proceedings under section 147. The CIT(A) deleted the addition, stating that it was unconnected with the escapement of income. The Revenue challenged this deletion, arguing that the AO's jurisdiction to assess matters found during assessment or reassessment proceedings is absolute. However, the ITAT Pune-A upheld the CIT(A)'s decision, stating that the unsecured loans issue was unrelated to the escapement of income. The ITAT affirmed the deletion of the addition of unsecured loans and dismissed the Revenue's grounds.

In conclusion, the ITAT Pune-A upheld the CIT(A)'s decision to allow the deduction of salary to partners based on the partnership deed and affirmed the deletion of the addition of unsecured loans, dismissing the Revenue's appeals.