09 October 2013
Dear All One of my client who is Idea mobile store owner (proprietorship) having commission income in excess of Rs.25 lac from above activity. Kindly confirm wether it is a business or profession in light of following terming it as Authorised repersentative ection 44AB defines separate Limit for Business(60lakh) and Profession(15Lakhs) ,so it is essential to understand what is business and what is profession . Few point to resolve this issue has been given here under for your ready reference. `Profession' and `business' explained 1. The term "business" is defined in section 2(13) of the Act, as under :-"Business" includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.The word `business' is one of wide import and it means activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The expression "business" does not necessarily mean trade or manufacture only -Barendra Prasad Roy v ITO [1981] 129 ITR 295 (SC). 2. Section 2(36) of the Act defines profession to include vocation.Profession is a word of wide import and includes "vocation" which is only a way of living. - CIT v. Ram Kripal Tripathi [1980] 125 ITR 408 (All). 3. Whether a particular activity can be classified as `business' or `profession' will depend on the facts and circumstances of each case. The expression "profession" involves the idea of an occupation requiring purely intellectual skill or manual skill controlled by the intellectual skill of the operator, as distinguished from an operation which is substantially the production or sale or arrangement for the production or sale, of commodities. - CIT Vs. Manmohan Das (Deceased) [1966] 59 ITR 699 (SC). The following have been listed out as professions in section 44AA and notified thereunder (Notifications No. SO-17(E) dated 12.1.77 and No.SO 2675 dated 25.9.1992): 1. Accountancy 2. Architectural 3. Authorised Representative 4. Company Secretary 5. Engineering 6. Film Artists/Actors, Cameraman, Director, Singer, Story-writer,etc. 7. Interior Decoration 8. Legal 9. Medical 10. Technical Consultancy
The following activities have been held to be business :- 1. Advertising agent 2. Clearing, forwarding and shipping agents - CIT v. Jeevanlal Lallubhai & Co. [1994] 206 ITR 548 (Bom). 3. Couriers 4. Insurance agent 5. Nursing home 6. Stock and share broking and dealing in shares and securities -CIT v. Lallubhai Nagardas & Sons [1993] 204 ITR 93 (Bom). 7. Travel agent.
09 October 2013
Dear its very tricky situation and income tax does not give any definition whether a occupation is business or profession.the closest reference you get is section 9 (1) explaination 2 which suggests that if broker has independent status, then brokers shall be considered to be carrying out Business.. Further ICAI in their guidance note also says that commission agency can be classified as business, in your case since the person is owner and having independent status as well i.e. he get customer and recieves payment and then remit the money to IDEA ( i assume) and retain his commission.. so i think it shall be considered Business only..
CAclubindia
