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TMI Blog1984 (10) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... dual deriving income from property and share of profit from the business styled Dinbazar Foreign Liquor (off) Shop, at Jalpaiguri, which deals in foreign liquor. It is important to note that the firm was engaged in the purchase and sale of foreign liquor. The wife of the assessee was also a partner in the same firm. The ITO invoked the provisions of section 64(1)(i) of the Income-tax Act, 1961 (' the Act '), and included the share income of the wife of the assessee from the said firm in the total income of the assessee. 9. The assessee appealed to the AAC and contended that the ITO erred in applying the provisions of section 64(1)(i) to the facts of the assessee's case. A certificate from the Superintendent of Excise, Jalpaiguri, was pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot apply to the facts of this case. He pointed out that the aforesaid case of Dr. K.K. Shah, was concerned with a firm of doctors. A doctor husband and a doctor wife were carrying on the activity of running a nursing home for the purpose of treating their own patients. In that case, business has been distinguished from profession and it was held that the income arising out of professional activities do not come within the purview of section 64(1)(i), while the income arising out of non-professional business activities do come within the purview of section 64(1)(i). To be more precise, it was held that the income arising out of the activity of treating the patients was professional income outside the purview of section 64(1)(i). On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm. She was also trained in selling liquor and so a licence was taken from the excise authorities. He emphasised the fact that any layman cannot get a dealer licence in foreign liquor and that the licence to the wife of the assessee was granted only because of her professional qualification, as stated in the aforesaid certificate. He strongly relied on the decision in the case of Dr. K.K. Shah in support of his case. 12. I have considered the contentions of both the parties as well as the facts on record. I find that the question raised in this appeal is, as to whether the activities carried on by the aforesaid firm can be said to be professional activities. At the outset, I must say that the activities carried on by the assessee-firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the character of a commercial nature ' the professional activity cannot be said to be an activity of a commercial character." The Special Bench of the Tribunal in the case, of Dr. J.N. Mokashi v. ITO [1982] 1 SOT 367 (Bom) had also considered the meaning of ' Profession '. They have held that professional qualification means fitness to do a job or undertake an occupation requiring the exercise of intellectual skill or of manual skill as controlled by intellectual skill. Applying the test laid down by the aforesaid authorities to the facts of the present case, I find that the activities carried on by the firm in which the assessee and his wife were partners were mere business activities and not professional activities. In my opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is section has to be interpreted in order to prevent the mischief and advance the remedy---CIT v. Sodra Devi [1957] 32 ITR 615 (SC.) If the argument of the learned representative for the assessee is accepted, then the mischief will be perpetuated and the remedy will be nullified because there is no business which does not require the application of some skill or other in which case all business activities will become professional and go outside the purview of section 64. Evidently, such an interpretation being, in my opinion, contrary to the intention of the Legislature, the accepted canons of construction has to be rejected. Hence, with due respect to the learned Central excise authority, I am unable to decide this appeal in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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