B.J. Divan, J.
1. This is a Reference under Section 256(1) of the Indian Tax Act, 1961 (hereinafter referred to as the Act). The assessee is an individual and the relevant assessment year was 1962-63, the 'previous year' being calender year ending on December 31, 1961. The assessee derived income from various sources, viz., interest on securities, dividends and share of profits of two Partnership Firms. These two firms, M/s Dhirajlal Khushaldas & Brothers and Dhirajlal Chunilal & are concerned in the present Reference with the firm of Khushaldas & Bros. The assessee owned a car and in his individual assessment he claimed 50% of his running expenses and 50% of the depreciation, aggregating to Rs. 6024/- as deductiable expenditure contending that the motor-car was used by him for the discharge of his duties as a, partner in the partnership concern of M/s Dhirajlal Khushaldas & Bros. This claim of Rs. 6024/-was disallowed by the Income Tax Officer firstly on the ground that though there was a provision for deduction of interest from such income of share of profits in a partnership firm, under Section 67(3) of the Act, there was no such provision for other expenses and the second ground was that whatever expenditure pertained to the business carried on by the firm was properly debitable to the account of the firm, and not to the assessment of the income of the partners. Against the, decision of the Income Tax Officer, there was an appeal by the assessee; and the Appellate Assistant Commissioner upheld the disallowance of these motor-car expenses on the ground that there was no clause in the partnership deed enjoining the assessee to maintain a car for the business of the firm and in the absence of such a clause, commercial expediency of the conveyance expenditure could not be said to have, been made out. The assessee took the matter in further appeal to the Appellate Tribunal and the Tribunal upheld the orders passed by the authorities below on the ground that the terms of the instrument of partnership did not fasten upon the assessee any liability of incurring expenses claimed so that he should be in a position to earn his share of profit. The Tribunal further observed that if any conveyance charges were incurred for the purpose of the business of the firm in which the assessee was a partner, they would be an admissible charge against the income of the firm; and that it was not open to a partner in a firm to claim any deduction which would have been claimed by the firm.
2. Thereafter, at the instance of the assessee, the following question has been referred by the Tribunal to this Court under Section 256(1) of the Act, viz.:
Whether on the facts and in the circumstances of the case, is the expenditure of Rs. 6024/- incurred by the assessee on car which was used by him for the business of the firm, an allowable deduction against the assessee's share income from the firm of M/s Dhirajlal Khushaldas & Bros.?
3. Under Clause 7 of the partnership deed, dated October 15, 1954, of, the partnership firm of M/s Dhirajlal Khushaldas & Bros, it has been provided that the firm was to be conducted under the sole supervision and guidance of M/s Chunilal Khushaldas Patel and/or Matubhai Chunilal Patel (the assessee) and/or their nominees; and the said clause further provides that the said Chunilal Khusaldas Patel and/or Matubhai Chunilal Patel and/or their nominees shall have the sole direction and control of the, partnership business and management thereof and all the matters connected therewith and no other partner shall be entitled to interfere with the management and conduct of the business and his or their decision and directions shall be final and binding on all the parties. It is, therefore, clear that under Clause 7 of the partnership deed, the assessee was the Managing Partner of the firm and the firm was acting as the Secretaries, Treasurers and Agents and thus were Managing Agents of a Limited Company known as Himabhai Mfg. Co. Ltd. It is the contention of the assessee that the amount of Rs. 6024/- was spent by him in carrying out his duties as the Managing Partner of the firm of M/s Dhirajlal Khushaldas & Bros. It is true that during the relevant year of income, which was the previous year for the purposes of assessment year 1962-63, the share of income from the firm of M/s Dhirajlal Khushaldas & Bros, coming to the assessee was nil in that particular year; but it is clear that if the expenditure was incurred by the assessee wholly and exclusively for the purpose of the business, then it can be deducted from the total income of the assessee as an expenditure incurred by him for the business of the partnership firm.
4. Under Section 37 of the Act, any expenditure not being expenditure of the nature described in Sections 30 to 36 and not being in the nature of capital expenditure or personal expenses of the assessee, laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head 'Profits and gains of business or profession'. This provision in the Act of 1961 is the same as the provision set out in Section 10(2)(xv) of the Act of 1922; and the decisions on Section 10(2)(xv) of the 1922 Act have a direct bearing on interpretation of Section 37(1) of the Act.
5. It was contended before us on behalf of the Revenue that the expenses in connection with the motor-car, amounting to Rs. 6024/- were the personal expenses of the assessee and not expenses incurred by the assessee wholly and exclusively for the purposes of the business. In this connection, it may be pointed out that the Tribunal has found in para 3 of its order as follows:
Since on the facts, it was found that the conveyance expenses were not incurred by the assessee in order that he may be able to earn his share of profit, but they actually represented expenses incurred for the business of the firm; the Revenue Authorities were justified in holding that the expenses claimed could not be set off against the assessee's share of profit, from the firm.
This portion from the order of the Tribunal clearly shows that on facts it was found that the expenses aggregating to Rs. 6024/- actually represented expenses incurred by the assessee for the business of the firm. Under these circumstances, it is not possible for us to accept the contention that the sum of Rs. 6024 - represented personal expenses of the assessee.
6. It was further contended on behalf of the Revenue before us that whenever an assessee claims a deduction under Section 37(1) of the Act, the burden is on the assesses to show that the expenses were laid out or expended wholly and exclusively for the purposes of the business. In support of that proposition reliance was placed on the decision of the Supreme Court in Swadeshi Cotton Mills v. Commissioner of Income Tax 63 I.T.R. 57. Since the assessee claims a particular deduction as against his total income, the burden must be discharged by him by leading appropriate evidence in each case and he must show that the amount which he has claimed as deduction against his business income has been expended by him wholly and exclusively for the purposes of the business.
7. It was contended before us on behalf of the Revenue that there was no finding of fact by any of the authorities that Rs. 6024/- were expended for the purposes of the business. It is true, according to this contention on behalf of the Revenue, that the amount of Rs. 12048/- represented the expenses incurred by the assessee in connection with the car inclusive of depreciation and it was also found that the car had been used by the assessee for the purposes of the business of the firm. But it was contended that the assessee had not discharged the burden of showing that this amount of Rs. 6024/ - had been expended by him in this particular manner. With reference to this contention, it must be borne in mind that before the Income Tax Officer as also before the Appellate Assistant Commissioner and the Tribunal it was nowhere contended on behalf of the Department that the burden of showing that the amount was expended wholly and exclusively for the purposes of the business had not been discharged by the assessee. On the contrary, the order of the Tribunal goes to show that it has found as a fact that the amount actually represented the expenses incurred for the business of the firm. This finding of fact of the Tribunal has not been challenged before us and no Reference challenging this finding of fact was asked for by the Commissioner under Section 256(1) of the Act. Under these circumstances, we must proceed on the footing that the assessee had actually incurred the expenditure of Rs. 6024/-for the business of the firm and that this amount had been expended by him wholly and exclusively for the business of the firm.
8. The question then arises whether the assessee was bound to recover this amount expended by him from the firm so as to reimpurse himself the amount spent by him in connection with the car or whether he can claim this amount in his own assessment of his total income. It was contended on behalf of the Revenue before us that a commercial man would not incur the expenditure himself if it is for the business of the firm and he would rather have the amounts debited in the accounts of the firm rather than going on spending the money himself. The question whether in a particular firm the amounts of expenses incurred by the partner for the business of the firm are debited to the accounts of the firm or are ultimately claimed by the partner in his own assessment is a question of arrangement between the partners inter se; but the question that has to be decided is whether the amount expended by a partner for the business of the firm can be claimed as a deduction against his share of profits from that particular partnership firm.
9. In Commissioner of Income Tax, Ahmedabad v. New, Digvijaysinji Tin Factory 36 ITR. 72, it was observed by S.T. Desai J. (as be then was) as follows:
The question here is not of Wiredrawn technicalities or any refined distinction but what is the real income of the partner. The matter has to be approached bearing in mind the commercial aspects of the same.
It is from that point of view that we have to approach the question that has been referred to us in the instant case. Under Clause 7 of the deed of partnership, the assessee was one of the two partners of the firm of M/s. Dhirajlal Khushaldas & Bros. That partnership firm was the Managing Agency Firm of a Limited Company and was managing the affairs of that Company. The amount which has been claimed by the assessee is found to have been expended by the assessee in connection with the business of the firm and it is further clear that the income which the assessee gets by way of share in the profits of partnership firm is chargeable Under the head 'business' under Section 28 of the 1961 Act, similar to Section 10(1) of the 1922 Act. Thus it is against his income under the head 'business' that the assessee claims deduction by way of expenses in connection with the motor-car, the motor-car having been used for the purpose of business of the partner-snip firm in question. It is clear to our mind that in the light of the facts and circumstances, which we have just now set out, the assessee had incurred this particular expenditure wholly and exclusively for the business. The fact that in this particular year his share of income from the firm of M/s Dhirajlal Khushaldas & Bros, was nil mikes no difference whatsoever to the conclusion that it is an allowable deduction against the assessee's income from business.
9.1 Under these circumstances, it is clear that the question referred to us must be answered in the affirmative. We must make it clear that it is in the light of the facts and circumstances of this case that we have answered the question in favour of the assessee.
10. In the result, we answer the question in the affirmative. The Commissioner will pay the costs of this Reference to the assessee.