Radius Industries v. ACIT (2019) 75 ITR 547 (Delhi)(Trib.)

S. 40(b)(ii) : Amounts not deductible–Partner–Remuneration-Partnership Deed mentioning maximum amount payable but payment to individual partner left undecided-Payments to be decided mutually between them- No disallowance made in preceding years-Principle of consistency applied. [S. 40(b)(v)]

The assessee debited remuneration to the partners. The AO disallowed it under S.40(b)(ii) of the Act on the ground that the partnership deed neither specified the amount of remuneration payable to each individual working partner nor laid down the manner of quantifying such remuneration. The CIT(A) confirmed  the addition holding that the partnership deed mentioned the maximum amount payable under S. 40(b)(v) but not the amount that had been mutually agreed to be paid as remuneration and the quantum of remuneration to be paid to the individual partners was left undecided, and left to the discretion of the two partners to be decided at a future point in time. On appeal, the Tribunal held that the remuneration to the working partners was duly authorised by the partnership deed and such payment had been made according to the deed of partnership and the amount of remuneration payable and the manner of quantifying such remuneration was to be decided mutually between them from time to time. This disallowance was contrary to the principle of consistency as no disallowance was made in the preceding years and was not sustainable. (AY.  2015-16)