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TMI Blog1994 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... either arise out of the profession nor it was incidental to the profession. The action of the ITO was upheld by the CIT(A). 3. The learned counsel for the assessee has vehemently argued that the expenditure had a nexus with the activity of his profession, as eyes are necessary for carrying on the profession of the assessee and therefore, such expenditure cannot be called personal expenditure. The case laws referred to by the CIT(A) were distinguishable according to the learned counsel for the assessee. He pointed out that food is a matter for a human being to keep alive but eyes are not. Certain illustrations were quoted by him for this purpose, i.e., gash on the face of film artist will be detrimental to his profession and therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes i.e., professional as well as personal it cannot be allowed as business expenditure because in such cases it cannot be said to have been incurred wholly and exclusively for the purpose of profession. 4. Both the parties have been heard at length. The answer to the issue raised in this appeal would depend upon the fulfilling of the following conditions laid down in section 37(1) of the Income-tax Act, 1961 :-- (1) The expenditure must not be personal or capital expenditure. (2) It must be laid out or expended wholly and exclusively for the purpose of business or profession. (3) It must not be of the nature described in sections 30 to 36. Admittedly, the expenditure in question is not of the nature described in sections 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the State that expenses were personal expenses of the assessee. It is in this context that the Supreme Court made these observations. Hence these observations are very much relevant for deciding the issue. (ii) The learned counsel for the assessee also tried to distinguish the Tribunal decision in the well known case of Shanti Bushan. It was stated by him that, in that case the operation of heart was necessary for living but in the present case it is not. We are unable to accept the same. Living includes effective living of human being. Eyes are not only necessary to carry on the activities of earning but are also necessary for day to day working by a human being. Even to live a sedentary life one wish to have healthy eyes. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied is whether the expenses have been incurred with the sole object of furthering the interest of the business or profession of the assessee unmixed with any other consideration. If the expense is found to be an element other then the business or profession, than such expenditure cannot be allowed as not being laid out wholly and exclusively for the purpose of profession. Since we have already held that expenditure on medical treatment of eyes for improving the vision has an element of personal expenditure, the expenditure incurred by the assessee on foreign tour for pre-operating investigation relating to his eyes cannot be allowed as business expenditure under section 37(1). Hence this ground of the assessee is dismissed. 5. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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