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TMI Blog1944 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the circumstances of the case would be fully set out in the order of reference, but strangely enough they are not, and we are not calling for a further and better statement of the case only because we find that this reference can be disposed of upon facts which were admitted in the course of the arguments of the parties. It appears that the assessee Mr. E.C. Danby and his brother Col. A.L. Danby jointly own a partnership concern and the arrangement between them is that whoever will supervise the management of the concern will get remuneration. The assessee is said to have received in the course of the accounting year a sum of ₹ 5,805 as remuneration for managing the agricultural property owned by the concern and the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that the finding of the Tribunal that the applicant did not at all receive any such salary or extra profit during his absence is not correct, the fact being that the partners received such extra profit even during their absence from India, but only with this difference that during their absence from India they received half of their salary or extra profit allowed as supervision charge . In the same paragraph it is pointed out that the proper test for appreciating the nature of such receipt will be to determine the entire income of the concern both agricultural and non-agricultural in accordance with the Income-tax Act; the entire salary paid to your petitioner or to the other partner would then be added to the profit of the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by virtue of the ownership of his share and that the surplus was to be treated as salary and therefore taxable as he received it for managing the father's estate. It was further held that even a co-owner could employ another co-owner on the business of the joint ownership and similarly a partner could be employed by another partner on the business of the firm. This decision, with which I entirely agree, seems to me to cover the present case. Here one of the two partners has received an extra remuneration for managing the estate which was in excess of that part of his income which he received as of right by virtue of the ownership of his share in the partnership. Such remuneration, even though the property managed was agricultural, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 15 of the scheme would not be affected. Our attention has been drawn to the fact that the Privy Council have also observed that a different question might have arisen if the appellant's remuneration had been by way of a fractional part of the income of the wakf estate or by a percentage commission. This observation does not help the assessee because in the present case it has not been shown to us that the remuneration received by him was by way of a percentage commission. Therefore in my judgment the answer to the question referred to us must be that the sum in question is not exempt from taxation under Section 4(3)(viii) of the Income-tax Act. The assessee will pay costs to the Income-tax Department; hearing fee being a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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