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2013 (12) TMI 769 - AT - Income TaxTax not deducted at source on prefessional fees paid - Held that - The assessee himself is a painter and selling his own paintings and art works - The assessee can be considered to be in a vocation - This aspect has neither been considered by the AO nor by the CIT(A) - Whether the provisions of Section 194J apply in the case of the assessee would depend upon the finding of the fact whether the assessee is in profession or in business - The issue was restored for fresh adjudication.
Issues:
1. Deletion of suo motu addition under Section 40(a)(ia) made by the assessee. 2. Applicability of Section 194J in the case of the assessee. 3. Determination of whether the assessee is engaged in a profession or business. Analysis: 1. The appeal by the revenue challenged the deletion of a suo motu addition of Rs.22,11,000 under Section 40(a)(ia) by the CIT(A). The assessee, a painter selling paintings and art works, claimed that Section 194J was not applicable. The CIT(A) directed the AO to delete the addition, concluding that the provisions of Section 194J did not apply to the assessee, considering turnover and tax audit limits. 2. The revenue contended that the assessee, being a painter, falls under a profession with a tax audit limit of Rs.10,00,000, making Section 194J applicable. The revenue argued that the AO should have considered the applicability of Section 44AB from preceding years. The assessee's counsel maintained that the assessee is engaged in business, not a profession, with a tax audit limit of Rs.40 lakhs. The CIT(A) upheld the deletion of the addition based on this argument. 3. The Tribunal noted that the nature of the assessee's vocation, whether business or profession, was crucial in determining the applicability of Section 194J. As the AO and CIT(A) did not address this aspect, the issue was remanded to the AO for verification. The AO was instructed to ascertain the true nature of the assessee's vocation and decide the matter after providing an opportunity for the assessee to present evidence supporting their business status. In conclusion, the Tribunal allowed the revenue's appeal for statistical purposes and directed a reevaluation of the assessee's business or professional status to determine the applicability of Section 194J.
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