Professional Documents
Culture Documents
Taxation Law Case Summaries
Taxation Law Case Summaries
Bad debts
Read this : no need to establish bad debts as irrecoverable u/s 36(1)(vii) any longer, just need to
write it off as irrecoverable after 1989 amendment
Section 7 and section 36(1)(7) with section 36(2)
3 requirements:
- Ordinary course of business
- Presence of debtor-creditor relationship
- Should have written it as irrecoverable in previous year/s
1. B.D. Bharucha vs CIT 1961 (here)
Facts: A, who was carrying on the business of financing film producers and distributors,
had advanced a sum of Rs. 1,00,000 to a firm of film distributors, B.
Clause 3 of the agreement: A was not entitled to any interest, but would share in the
profit and loss of B
Clause 7 of the agreement: If picture was not released within stipulated time, B would
return to A all monies advanced by him with 9% pa interest.
Picture got delayed, and a dispute arose between the parties which was settled. A wrote
off a bad debt (irrecoverable) in his books of around Rs. 80k, as a revenue loss u/s
10(2)(xi) of the Act. HC held that it should be treated as a capital loss because of Cl 3.
Held: All losses in the running of a business cannot be considered capital losses. To find
out whether the loss is of RE/CE, it is important to look at the expenditure in relation to
the business. Here, the debt was incidental to the business of A in the relevant
accounting year, and the accounts of his business were kept on mercantile basis. Reading
Cl 3 and 7 together, it is a money-lending transaction, or one in the nature of a financial
deal in the course of A’s business, resulting in loan repayable with interest. Loss suffered
was REVENUE loss, deduction allowed as claimed u/s 10(2)(xi).
2. Mohandass Moolchand vs CIT
(also read on Pg 14, Gaurika’s notes)
Facts- An assessee (A) is a sole selling agent of this principal (P) for purpose of 1% sale.
The deed says any purchase amount not returned back will be default amount for S, and
he can call it as bad debt - P will not be responsible. S is the sole agent, P is the principal.
B, C, and D purchase. A (P’s employee) embezzles the amount, but S does not file any
complaint against A. S mentions that amount from B, C, D as bad debt. By making it as
bad debt, you can claim tax deduction from the government.
Ans: No debt left in the account of B, C, and D, as they already paid the money to P.
Invoking principle of IBC, contracts are used both in IBC and tax law. Look at the
contractual obligations. It will not be bad debt, as debt is cleared from one side.
However, it may be a loss.
To prove it’s a bad debt, need to establish debtor-creditor relationship. The debtors
(purchasers) already paid, so they’re no longer debtors - there is no bad debt. The only
parties left are the principal and agent, and their relationship cannot be termed a
debtor-creditor relationship.
Hon’ble Rajasthan High Court Held: " The assessee was not a creditor at any point of time
nor was (A) a debtor and (therefore) the first necessary element for claiming the amount
as a bad debt did not exist besides the other requirements of law. The assessee had also
failed to produce any evidence by which it could have been proved that P had made a
claim for the said amount from the assessee, and, therefore, there was no justification for
claiming the amount as a business loss."
Loss was business loss, it was not incidental to business of the assessee.
3. CIT vs Mysore Sugar Company Ltd 1962 [module]
Facts: The assessee Company used to purchase sugarcane from the sugarcane growers
to prepare sugar in its factory, in which a very large percentage of shares was owned
by the Government of Mysore. As a part of its business operation it entered into
written agreements with the sugarcane growers. Advance by sugar mill to sugarcane
growers resulted in loss due to non-delivery of sugarcane (because of drought). Due to
hardships on Sugarcane growers, the company was asked by the Mysore Government to
forgo some of its dues.
Question: Whether the money which was given up, represented a loss of Capital or must
be treated as a revenue expenditure?
Held:
To find out whether the expenditure is on the capital account or on revenue, one must
consider the expenditure in relation to the business. The questions to consider in this
connection are for what was the money laid out ? Was it to acquire an asset of an
enduring nature for the benefit of the business, or was it outgoing in the doing of
business? If money is lost in the first circumstance it, is a loss of capital, but if lost in the
second circumstance, it is a revenue loss.
In this case, there was hardly any element of investment which contemplates
more than payment of advance price. The resulting loss to the assessee company was
as much a loss on the revenue side, as it would have incurred had it paid for the ready
crop (which was not delivered because of drought). Losses incurred on such advances
becoming irrecoverable arise out of the business and are allowable under these
provisions (s. 36)
4. CIT v Travancore Sugar & Chemicals Ltd 1973 [module]
(https://indiankanoon.org/doc/921312/
Facts: The appellant Company was floated with a view to take over the assets of the
three Government concerns, namely, Sugar Factory, a distillery and tincture factory and
to run them..
Given confusion with regard to different judicial decisions rendered on different facts
and circumstances, the court held here that the surer way of arriving at a just conclusion
would be to:
(1) Ascertain by reference to the document under which the obligation for incurring
the expenditure is created, and then
(2) Apply the principles in the judicial decisions to the facts of the case
Judicial statements on facts of a case can never help in construction of an
agreement/statute which wasn’t considered in those judgements - to determine its terms,
obligation imposed and purpose for which transaction was entered into, need to look at
the document. (Basically, look at the contract/document from which obligation arises)
5. CIT vs Modi Telecommunication Ltd 2010 (here)
A company entered the pager industry. The moment the product was with the retailer,
the cost of pagers suddenly fell due to increase in mobiles (demand I’m guessing),
because of which the seller was unable to recover his investment back from society. Due
to change in technology, the amount was irrecoverable. Can this amount be called as bad
debt? Sold out in the market initially at 100, but now the price of pager was 40. Ans:
initially, it was not called as bad debt, but in the higher appeal, it was declared as bad debt
as the prices had been slashed due to an independent factor, and not by the company,
which made it bad debt for them.
Section 37
1. First check if deduction is expressly prohibited under any other provision, including
sections 40 and 40A. If not prohibited, then allowability may be considered under section
37(1).
2. Double deduction not possible in regard to the same business outgoing
Under section 37(1),
Any expenditure = spending, paying out or away of money. The putting aside of money which
may become expenditure on the happening of an event is not expenditure. But expenditure
covers liability which has already accrued or which has been incurred, although it may have to
be discharged at a future date. [Expenditure indicates that the trader chooses to pay out, so it is not
the same as a loss.]
To be an allowable expenditure under this, the money paid out or away must be:
● Paid out wholly and exclusively for the purpose of the business or profession, and
● Must not be in the nature of
○ Capital expenditure
○ Personal expense or
○ An allowance of nature described in sections 30-36
While the distinction between the two depends on circumstances of the case, generally:
● Capital expenditure (CE): connotes permanency, akin to the concept of securing
something, tangible/intangible property, or a right, so that they could be of
lasting/enduring benefit to the enterprise.
● Revenue expenditure (RE): operational in perspective and solely intended for the
furtherance of the enterprise.
Different tests for determining nature of expenditure:
● Once and for all test: CE is a thing that is going to be spent once and for all. Income
Expenditure is a thing that is going to recur every year, to meet a continuous demand.
● Enduring benefit test: expenditure made, not only once and for all, but with a view to
bring into existence an asset or advantage for the enduring benefit of trade → this will be
capital expenditure. HOWEVER, this is not a certain/conclusive test, it cannot be
applied blindly - must be according to circumstances of the case. [cases on this test
below]
● Change/no change in fixed capital assets: if sum of money is laid out for acquisition
or improvement of FC asset, it is attributable to capital. If no alteration is made in the FC
asset by payment, it is properly attributable to revenue, being in substance a matter of
maintenance (of capital assets)
Fixed and circulating capital
● FC: what the assessee turns into profits by keeping it in his own possession, OR what he
uses to produce what he has to sell.
● CC: what he makes profit of by parting with it and letting it change masters, OR the
things he turns over in the course of his trade are CC and their cost is revenue expense
● Example: if you buy anything at the inception of the business, it will be FC. Depending
on when you buy after commencement of business (few weeks, months, years, etc.), it
will either be FC or CC depending on the circumstances.
Profit tool apparatus:
Anything added to the profit tool apparatus will be a case of capital expenditure, if it is a
one-time investment. However, anything that is essential for running the business (but doesn’t
add to capital assets) will be revenue expenditure.
Example: Life membership to JSTOR/LexisNexis will be a case of revenue expenditure, as it
only provides access to a resource and a login - you don’t acquire an asset. It would result in a
revenue receipt for JSTOR etc. If you had an asset, you would have rights over it - you don’t
here.
Important (from Pg 19, Gaurika’s notes):
● Rule 1: From s28-44, if any expenditure qualifies as revenue then only it is exempted
under the law.
● Rule 2: when in any section it has been specified that some entries are capital expenditure,
then they can be exempted under the law.
● Rule3: S30-36 - anything covered in these will not come under section 37.
● Rule 4: every section consists of one sentence that is: revenue expenditure is exempted
but capital expenditure is not exempted, subject to the language of the section. Example:
buying of patents under s35 → then section says it will be capital expenditure as it comes
under long and enduring benefit. But if section is saying that “in any of the scenario it
will always be RE’, then we will read it as RE, despite the fact it is capital in nature.
1. Goldtech Engineers vs DCIT circle
Test of Enduring Benefit
1. Empire Jute Co. vs CIT 1980 [module] (here)
[aspect of section 37 - not in the nature of capital expenditure]
(also read on Pg 16, Gaurika’s notes)
Facts: The assessee is a limited company carrying on business of manufacture of jute. It
has a factory with a certain number of looms situated in West Bengal. It is a member of
the Indian Jute Mills Association. Right from 1939, the demand of jute in the world
market was rather lean and with a view to adjusting the production of the mills to the
demand in the world market, a working time agreement was entered into between the
members of the Association restricting the number of working hours per week, for
which the mills were entitled to work their looms. The first clause of the fourth
working time agreement provided that "..... no signatory shall work more than forty five
hours per week and such restriction of hours of work per week shall continue in force
until the number of working hours allowed shall be altered in accordance with the
provisions of Clauses 7(1), (2) and (3).” It was under this clause that the assessee
purchased loom hours from four different jute manufacturing concerns which were
signatories to the working time agreement, for the aggregate sum of Rs. 2,03,255/-, the
assessee claimed to deduct this amount of Rs. 2,03,255/- as revenue expenditure on
the ground that it was part of the cost of operating the looms which constituted the
profit making apparatus of the assessee.
Held: There may be cases where expenditure, even if incurred for obtaining advantage of
enduring benefit, may, nevertheless be on revenue account and the test of enduring
benefit may break down. What is material to consider is the nature of the advantage in a
commercial sense and it is only where the advantage is in the capital field that the
expenditure would be disallowable on an application of the above test. If the advantage
consists merely in facilitating the assessee’s trading operations or enabling the
management and conduct of the assessee’s business to be carried on more efficiently or
more profitably while leaving fixed capital untouched, the expenditure would be on
revenue account, even though the advantage may endure for an indefinite future.
There may be cases where expenditure, though referable to or in connection with fixed
capital, is allowable as revenue expenditure - expenditure for preserving and maintaining
capital asset or interest paid on the unpaid purchase price of a capital asset.
Here, machines/labour are not bought, no asset has been added. There is no long and
enduring benefit - the loom hours are necessary for day to day activities of the company.
2. LB Sugar Factory & Oil Mills Ltd. vs CIT 1980 [module]
(also read on Pg 17, Gaurika’s notes)
Facts: The appellant, assessee is a private limited company carrying on business of
manufacture and sale of crystal sugar in a factory in UP. The assessee contributed a
certain sum towards the construction of some Road at the request of the Collector and a
further sum, being 1/3rd share of the cost of construction of roads in the area
around its factory under a Sugar Cane Development Scheme, to the State of Uttar
Pradesh. These two sums were claimed by the assessee as deductible expenditure under
S. 10
SC held: When a road is constructed in order to facilitate transport of sugarcane to the
sugar factory and outflow of manufactured sugar to the market, this construction
facilitates the business operation of the assessee and enables the assessee to conduct the
business more efficiently and profitably. Though the advantage may be of long duration
(as roads will last long), it would not be an advantage in the capital field, as no
tangible/intangible asset was acquired by the assessee, nor was there any addition
to/expansion of the profit making apparatus of the assessee. If the roads had been made
within the premises, would have been of long and enduring benefit, making it a capital
expenditure.
3. CIT vs Jalan Trading Co. Ltd. 1985 [module]
Facts: A firm (JTC) obtained the sole selling agency for the products of a manufacturer
for two years with a right of renewal. A few months later, under a deed of assignment,
the firm assigned the benefits of the agreement to the assessee company under which
the assessee carried on the business as sole selling agents for the products of the
manufacturer. Under the agreement, the assessee company could not take over the whole
of the business but only the benefit of the contract with the manufacturer and was to pay
75% of the profits as royalty to the firm. The assessee claimed deduction of this amount.
Held:
It is well settled that if an expenditure is made for acquiring or bringing into existence
of an asset for the enduring benefit of the business, it is properly attributable to
capital and is of the nature of capital expenditure. The aim and object of the
expenditure would determine, whether it is capital expenditure or revenue
expenditure. The source or the manner of the payment would be of no consequence.
Where a company had acquired an asset in consideration of recurring payment of
certain sum per year, which was a right to carry on its business unfettered by any
competition from outsiders within the area, it was held to be in the nature of a capital
asset and the payment was not deductible under section 10(2) (xv) of the Act.
In the present case, a capital asset had been acquired under the agreement. The
assessee was a new company and had no other business. Under the contract it acquired
the right to carry on the business on a longer basis subject to renewal of the agreement.
And since a capital asset had been acquired, the expenditure is not liable for deduction.
Facts: The appellant company acquired from the Government of Assam a lease
of certain limestone quarries for 20 years for the purpose of carrying on the
manufacture of cement. The rent reserved was a half-yearly rent certain of Rs.
3,000 for the first two years and thereafter a half-yearly rent certain of Rs. 6,000
with the provision for payment of further royalties in certain events. In addition
to these, two further sums as “protection fees” under special covenants were
payable. The company paid its lessor sum of Rs 40000 w.r.t. these two covenants
and claimed deduction under S. 10(2).
Test of enduring benefit:
Held: If the expenditure is made for acquiring or bringing into existence an asset
or advantage for the enduring benefit of the business, it is properly attributable to
capital and is of the nature of capital expenditure. If on the other hand it is made
not for the purpose of bringing into existence any such asset or advantage but for
running the business or working it with a view to produce the profits it is a
revenue expenditure. If any such asset or advantage for the enduring benefit of
the business is thus acquired or brought into existence, the source of payment is
immaterial - doesn’t matter if it is made from capital or income, or whether the
payment was made once or periodically. The aim and object of the expenditure
would determine the character of the expenditure whether it is a capital
expenditure or a revenue expenditure."
Due to diversity of human affairs and complicated nature of business operation,
it is difficult to lay down a test which would apply to all situations. One has to
apply the criteria from the business point of view. Must determine whether on
fair appreciation of the whole situation, the expenditure incurred for a particular
matter is of the nature of capital expenditure or a revenue expenditure.
The deduction was not allowed.
Capital Gains
Section 45 - any profits/gains arising from the transfer of a capital asset effected in the previous
year… shall be chargeable under the head ‘capital gains’ and be deemed to be the income of the
previous year in which the transfer took place
Section 48 - mode of computation
1. CIT vs DC Srinivas Shetty
(from Pg 20, Gaurika’s notes)
A property belongs to A (value = 1 lakh) and A sold to B. B sells it for 1 lakh 20k, so
capital cost is 20k, this is how we calculate under section 48. But when it comes to
goodwill, you cannot calculate as you yourself have to generate it. There is lack of actual
cost as you have not bought the goodwill from someone. When a person is paying for
goodwill the first time, how will you calculate cost of goodwill (CG)? There is no CG on
first-time sale of good - it will not come in the category of CG. Therefore, first time sale
of goodwill is exempted. But when sold after the first time, there will be cost of goodwill
and it will not be exempted.
2. N. Bagavathy Ammal vs CIT Madurai 2003 [module]
(from Pg 20, Gaurika’s notes)
If a company is liquidated and liquidator is distributing sets among Shareholders (SH),
can they receive goodwill as an asset? There is no transfer, so no CG. That is, there is no
quid pro quo, there is only distribution. Distribution is my share in the company and this
is what I am getting back as a shareholder. But now say there are 9 SH, a private
company and 12 assets. Distributor distributed among these 9 SH (1 each), and out of
remaining 3 assets he will try to enter into consent decree as to how to distribute it. In
the process, suppose, A gets immovable property as Agricultural land. Can’t cut it down
and the land is very vast, more than his share. So, others agree that, from remaining three
assets, he will not get a share.
Ans: Under 46(2), you can calculate CG only on those assets where an excess amount has
been received, when compared to your share. So, for the agricultural land, can calculate
CG as it is beyond A’s share in the assets (he got excess share). But for others, CG will
not be calculated, as it is just redistribution.
[Jasper Sir: S. 46(2) talks about assets and not capital assets, can we read them as same?
When we talk about Capital assets, 46(1) and 46(2), can we read agricultural land under
2(14) which excludes many things under the definition of capital assets? Section 46
provides for a proviso and is an exemption to section 45. We will treat agricultural land
as any other assets and will come under immovable assets.
46(2) basically says that when a shareholder receives money/other assets on liquidation
of the company, the SH shall be charged under capital gains for: amount received/value
of asset MINUS dividend received]
3. CIT vs Mithlesh Kumari 1973 (here)
It is about the process of acquiring, not maintenance of the land.
When calculating actual cost, you will include interest amount.
When there is transfer of asset, there is cost of goodwill → so there will be no CG for
interest on bank rate.
Clubbed Income
Sections 60-64 - Income of other persons included in assessee’s income
Section 64 - Income of individual to include income of spouse, minor child, etc.
In computing the total income of any individual, there shall be included all such income as
arises directly or indirectly….
(ii) to the spouse of such individual by way of salary, commission, fees or any other form of
remuneration whether in cash or in kind from a concern in which such individual has a
substantial interest :
Provided that nothing in this clause shall apply in relation to ‘any income arising to the
spouse where the spouse possesses technical or professional qualifications and the
income is solely attributable to the application of his or her technical or professional
knowledge and experience’;
1. Philip John Plasket Thomas v CIT 1963 [module]
[The relationship of Husband and wife / Father in law, mother in law and daughter in
law for the purpose of Sec 64 should subsist both at the time of transfer and at the time
of accrual of income]
Facts: The appellant who was engaged to one Mrs. Knight, transferred 750
shares to her on December 10, 1947. On December 15, 1947, the Company transferred
those shares in her name in its books. On December 18, 1947, the marriage was
solemnised. The Income-tax Officer included the income of Mrs. Thomas from those
shares in the income of her husband.
Held: From whatever point of view the transfer of shares is considered, whether as a
consideration for a promise to marry or a gift subject to the subsequent condition of
marriage, the transfer took effect immediately and was not postponed to the date of
marriage. On the date of transfer, the appellant and Mrs. Knight were not husband and
wife and hence there was no transfer, directly and indirectly, by the husband to his
wife. All income of the wife from all assets is not includible in the income of her
husband. The income from only those assets of the wife can be included in that of
her husband which were transferred to her by her husband after they became husband
and wife.
2. Batta Kalyani v Commissioner of Income Tax 1985 [module]
Facts: The assessee (wife) ran a hardware and paint shop, and employed her husband to
manage the business and paid him salary for services rendered. ITO included his salary in
the assessee’s total income by applying section 64(1)(ii). ITO argued that the proviso to
section 64(1)(ii) was not applicable as the husband of the assessee did not possess any
technical or professional qualification, and the income derived from the assessee’s
husband was not solely attributable to the application of such technical/professional
knowledge and experience of the husband. The assessee argued that the proviso applied,
and that the husband’s salary was not liable to be included in her total income.
Held: technical and professional qualifications doesn’t necessarily relate only to
qualifications obtained by getting a degree/certificate, as made clear by the words
‘knowledge and experience’ used in the proviso. Harmonious construction of these two
sets of phrases → if a person possesses technical and professional knowledge, and
income is solely attributable to the application of such knowledge and experience, the
requirement for application of the proviso is satisfied (even if person may not possess
qualification issued by a recognised body). Expertise in profession/technique is
sufficient, if by such use, income is earned.
Decision: BUT the court held that the facts of this case did NOT show that it was solely
attributable to the husband’s application of tech + professional knowledge and
experience. Second part of proviso not complied with, and salary is thus includible in
assessee’s total income u/s 64(1)(ii).
3. HM Mokashi v Commissioner of Income Tax 1994 [module]
Held: In order to claim the benefit of proviso to avoid clubbing of income under section
64(1)(ii) of the Act, both the conditions specified in the proviso must be fulfilled.
If we read the expression “technical or professional qualification” used in the proviso to
section 64(1)(ii) [in the light of the above definitions of “technical” and “professional”,] it
becomes clear that the “qualification” mentioned therein must be such which makes a
person eligible for technical or professional work. A person can, therefore, be said to be
in possession of requisite technical qualification when by virtue thereof, he is eligible to
perform that function. Similarly, professional qualification must mean qualification which
is necessary for carrying on the particular profession.
Examples (from the judgment):
1. The requisite qualifications for carrying on the legal profession have been laid
down by the statute. In such a case, a person possessing such qualification
alone can be said to be in possession of professional qualification, because
such qualification is a must for carrying on the profession. Knowledge of
law or experience is not relevant for that purpose.
2. Similarly, a person cannot carry on medical profession unless he possesses the
requisite degree.
3. Similarly, there are technical jobs which require degrees and diplomas –
whereas, there are a few others where university degree or diploma is not
necessary. Adequate training and evidence thereof might be sufficient. Thus, the
nature of professional qualification will vary from profession to profession.
Similarly, the nature of technical qualification will also vary depending on the
nature of the technical job.
What is technical or professional qualification, therefore, will have to be decided
in each case depending upon the nature of the profession or the technical work.
But one thing is certain that it is not any and every qualification, academic or otherwise,
which can bring a spouse within the scope and ambit of the proviso to take the income
out of the clubbing provision. It is the possession of only technical or professional
qualification necessary for undertaking the particular technical job or carrying on
the profession to which the income is attributed that will meet the requirement of
the first part of the proviso.
“knowledge and experience” will not be relevant for that purpose. A spouse, well-versed
in law and experienced in the working of the legal profession, cannot be said to be in
possession of professional qualification for carrying on the legal profession if he or she
does not possess the requisite degree or diploma. Payments made to the spouse in such a
case for any legal services cannot be brought within the purview of the proviso by
reference to the words “knowledge and experience” occurring in the latter part thereof.
4. Mohini Thapar v CIT 1972 [module]
Facts: Karam Chand Thapar had made certain cash gifts to his wife, Mohini Thapar.
From one of those gifts, she purchased certain shares in company A and the balance
amount she invested. The shares earned dividends and the investments yielded interest,
and wife got shares in new company in lieu of originally held shares on sale of the
previous company A. The interest realised and the dividends earned were included in the
income of Karam Chand Thapar for the purpose of assessment. The assessee objected to
the inclusion of that amount in his income. The question was whether the Department
was entitled to include the dividends and interest in question in computing the taxable
income of the assessee. The ITO held that they were liable to be included in the income
of the assessee, and the assessee appealed.
Held: The transfer to assets made by the assessee to his wife was a direct transfer and the
income arising out of the deposits and shares purchased by her was an "indirect income"
- such income had a proximate connection with the transfer of the assets. The dividend
income from the new shares was held to be includible in the total income of the
husband.
5. Yashwant Chhajta v Deputy Commissioner of Income Tax 2013 [module]
Facts: Wife of assessee is an engineer who looks after his plans of construction, and also
helps in administrative decisions in his civil construction business. She holds a degree in
electronics telecommunication. Assessee claimed deduction of salary paid to her by him,
under section 64(1)(ii).
Held: This provision makes it clear that the possession of technical or professional
qualification is a condition precedent on fulfilment of which that part of the
income which falls in the second part of the proviso is excluded from the
operation of the clubbing provision. Take, for example, the case of the wife of an
individual who is a qualified legal practitioner. Her professional services are utilised by
the assessee and remuneration paid to her by way of salary, fees, etc. In such a case, she
fulfils the first requirement of the proviso and she is, therefore, entitled to the benefit of
the proviso. But, the benefit is again hedged in with certain conditions and is limited to
the extent indicated in the proviso. In that context, her “knowledge and experience” will
assume significance. Take for example, the case of the wife of the individual who has just
passed the LL. B. examination and enrolled herself as an advocate or having passed the
LL. B. examination, did not practice law for long but has started doing so just a year or
two back. Her professional services as a lawyer are utilised in the concern of her husband
and she is paid remuneration therefore. In such a case, when the assessee claims the
benefit of the proviso to avoid clubbing of such income of his wife with his own income,
he will be required to satisfy that the remuneration so paid to her for her legal services
was “solely attributable to the application of her professional knowledge and experience”
as a lawyer. If the taxing authorities find that the remuneration paid for the legal services
was excessive or high having regard to her limited professional knowledge and
experience, they may determine the amount of remuneration which can be solely
attributed to the application of her professional knowledge and experience and exclude
only that part of her income from the clubbing provision contained in section 64(1)(ii).
Thus, the object of the second part of the proviso is to restrict the benefit of the
proviso only to reasonable payments for professional services and to put a check
on diversion of income to the spouses possessing technical or professional
qualifications in the guise of salary, fees, etc., for professional or technical services
with a view to reduce the incidence of tax. The two conditions are cumulative, not
alternative.
Decision: The assessee’s wife was in possession of technical qualification but the assessee
failed to prove conclusively that his wife Smt. Nanda Chhajta was in fact looking after
plans for execution work and was taking administrative decisions. No proof was
provided for such. The assessee cannot be given benefit merely on the ground that the
deduction has been allowed for previous assessment years.