Dhimant Hiralal Thakar vs. CIT (Bombay High Court)

DATE: October 28, 2015 (Date of pronouncement)
DATE: November 17, 2015 (Date of publication)
AY: 1986-87
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S. 37(1): Though eyes are an important tool for the performance of functions by a professional (solicitor), the expenditure on its treatment is personal expenditure and not business expenditure

(i) No evidence has been brought on record to establish that in the absence of investigation and treatment, the applicant would be handicapped in discharging his obligation as a Solicitor/ Advocate. While at this, we cannot resist but point out that in this Court itself, we have a couple of visually challenged Advocates who are very competent in discharging their duties. We may also make reference to the late Mr. Sadhan Gupta who passed away recently and though visually challenged was as such appointed as Additional Advocate General of West Bengal in 1978 and the Advocate General in 1986. Taken to its logical conclusion, then every and all expense incurred on daily living and food would be allowable as expenditure under Section 37 of the Act. Thus, we find no substance in the contention that it is not a personal expenditure incurred by the Appellant.

(ii) It is thus clear that the requirement to claim a deduction under Section 37 which is a residuary provision is quite clear, which is that the expenditure must not be of the nature described in section 30 to 36; secondly the expenditure must not be capital in nature; thirdly the expenditure must have been laid down wholly and exclusively for the purpose of business/profession of the assessee; and fourthly the expenditure must not be personal in nature. Applying these requirements of the statutory provision and the settled position in law as noted by us in the above decisions, we have no hesitation to reach a conclusion that the applicant is not entitled to claim deduction in respect of the expenditure incurred by him on foreign tour undertaken by him in the assessment year in question for the purpose of preoperative treatment of his eyes. We are not persuaded to accept the submission on behalf of the applicant that eyes are required to be exclusively used for the purpose of profession by the applicant. As observed above eyes are an important organ of the human body and is essential for the efficient survival of a human being. Eyes are thus essential not only for the purpose of business or profession but for purposes other than these which are so many. It is therefore clear that the said expenditure as claimed by the applicant is not in the nature of the expenditure wholly and exclusively incurred for the purposes of the profession of the applicant and thus this expenditure cannot be claimed by the applicant to be allowed as deduction in computing the income chargeable under the head profits and gains from business or profession in case of the applicant as per the provisions of Section 37 of the Act (Shanti Bhushan vs. Commissioner of Income Tax (2011) 336 ITR 26 (Delhi) referred)

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