May 242018

Can a partnership firm become a partner

One of my client ask me a question whether he can make a partnership firm by entering into agreement with an already existing partnership firm? If so how and what are legal implication. This time I am writing this blog to share my experience with my client to all of you.

Since, the inception of limited liability act and OPC (One person company) we can analyze this fact under three different heads:

  • Whether a partnership firm can enter into agreement with other partnership firm and / or persons and can form other partnership firms?
  • Whether a partnership firm can make a LLP (limited liability partnership)?
  • Whether a partnership firm can make on OPC?

We, herewith, analyze the above cases one by one.

1) Whether a partnership firm can make other partnership firms?

Before concluding on the above cases, the followings are worth noting:

Section5 PARTNERSHIP NOT CREATED BY STATUS. The relation of partnership arises from contract and not from status; and, in particular, the members of a Hindu undivided family carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such are not partners in such business.

Section4 DEFINITION OF “PARTNERSHIP”, “PARTNER”, “FIRM” AND “FIRM-NAME”. “Partnership” is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Persons who have entered into partnership with one another are called individually, “partners” and collectively “a firm”, and the name under which their business is carried on is called the “firm-name”.

Thus, only “persons” (either natural or artifical) can enter into a partnership. A partnership firm being a compendium of persons but not a juridical person, it cannot become partner into another partnership.

The Hon’ble Supreme Court in the case of Dulichand Lakshminarayan vs The Commissioner Of Income tax, [1956 AIR 354, 1956 SCR 154] considered similar situation and held “In our opinion, the word “Persons” in S.4 of the Indian Partnership Act contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a “person” and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual

2) Whether a partnership firm can make LLP?

Section 5 of LLP Act – 2008 – “Any individual or body corporate may be a partner in a limited liability partnership”. As per section 2(d) of the act the term “body corporate” means a company as defined in section 3 of the companies act 1956 and includes – (i) a limited liability partnership registered under this act (ii) a limited liability partnership incorporated outside India (iii) a company incorporated outside India.

Since, a partnership firm is not a body corporate and hence a partnership firm can not form a LLP.

  • Whether a partnership firm can make an OPC?

Section 2(62) ―One Person Company means a company which has only one person as a member;

Section 2(55) ―member, in relation to a company, means— (i) the subscriber to the memorandum of the company who shall be deemed to have agreed to become member of the company, and on its registration, shall be entered as member in its register of members; (ii) every other person who agrees in writing to become a member of the company and whose name is entered in the register of members of the company; (iii) every person holding shares of the company and whose name is entered as a beneficial owner in the records of a depository;

The Department of Company Affairs has in its Circular No. 4/72, dated 9-3-1972 expressed similar view stating that a firm, not being a person, cannot be registered as a member of a company except where the company is licenced under section 25 of Companies Act 1956.

Another circular under section 187C, the Department stated: “A partnership firm is not a person capable of being a member within the meaning of section 41 of the Companies Act, 1956 and since a partnership is not a legal entity by itself but only a compendious way of describing the partners constituting the firm, it is necessary that the names of all the members of the partnership firm should be entered in the Register of Members in order that the right of the partnership as a whole to the shares in question may prevail.

Thus, a partnership firm can not form an OPC.

May 222018

ITR Filing procedure

Can ITR be filled manually for assessment year 2018-19?

Where return is furnished in ITR Form-1 (Sahaj) or ITR-4 (Sugam), the following persons have an option to file return in paper form:-

  • an Individual of the age of 80 years or more at any time during the previous year; or
  • an Individual or HUF whose income does not exceed five lakh rupees and who has not claimed any refund in the Return of Income.

Is it necessary to file return of income when I do not have positive income?

Income-tax returns validate your credit worthiness before financial institutions and make it possible for you to access many financial benefits such as bank credits, etc.

Further, ​​If you have sustained a loss in the financial year, which you propose to carry forward to the subsequent year for adjustment against subsequent year(s) positive income, you must make a claim of loss by filing your return before the due date. ​​

I have salary income and income from other sources like consultancy. Which ITR form should I use?

If income is less than Rs 50 lakh, then you must use ITR-1. If it exceeds Rs 50 lakh, it’s ITR-2. If the consultancy income is of regular nature, you may need to treat this as income from profession and file ITR-3 or ITR-4 if you are a doctor, engineer, architect, etc., and wish to avail presumptive taxation scheme for professional income.

My husband has not filed his IT returns for the past three years. Can he file it now?

ITRs for FY 2014-15, FY 15-16 and FY 16-17 can’t be filed now as time for filing has gone. Only the return for FY 2016-17 can now be revised till March 31, 2019 if the original return has been filed by March 31, 2018. However, the ITR for FY 2017-18 can be filed till July 31, 2018.

I took voluntary retirement in 2015 and was paid gratuity of Rs 10 lakh. However, I had worked for nearly 28 years and my basic and DA combined exceeded Rs 1.5 lakh per month based on which my actual gratuity amount should be Rs 22 lakh-plus. Is there a cap on gratuity payment?

As per Payment of Gratuity Act, 1972, the amount of gratuity payable to an employee shall not exceed Rs 10 lakh (this limit has been increased now to Rs 20 lakh, however, pending approval by Parliament). Hence, you were eligible to receive from your an employer gratuity only upto Rs 10 lakh unless a higher amount is specified in your employment agreement.

I am claiming tax benefit on home loan for my self-occupied flat in my name. I purchased another flat in 2016 in my wife’s name, a housewife. A housing loan was taken in joint name. Under whose ITR should the second flat be shown and who can claim tax benefit on second home loan?

Since you have mentioned that you paid for the flat purchased in 2016, any income from this house would be clubbed in your income only as per clubbing provisions in Income-tax Act, 1961 and would not be considered your wife’s income. Further, even if the house is vacant, you will be required to consider the income from this house as per the prevalent market rates. However, you can claim the deduction for interest, as you are paying instalments for the same from your own income.

May 212018

Modus operandi of 26AS

What is form 26AS?

A taxpayer may pay tax in any of the following forms:

  • Tax Deducted at Source (TDS)
  • Tax Collected at Source (TCS)
  • Advance tax or Self-assessment Tax or Payment of tax on regular assessment.

The Income-tax Department maintains the database of the total tax paid by the taxpayer (i.e., tax credit in the account of a taxpayer).  Form 26AS is an annual statement maintained under Rule 31AB​ of the Incom​e-tax Rules disclosing the details of tax credit in his account as per the database of Income-tax Department. In other words, Form 26AS will reflect the details of tax credit appearing in the Permanent Account Number of the taxpayer as per the database of the Income-tax Department. The tax credit will cover TDS, TCS and tax paid by the taxpayer in other forms like advance tax, Self-Assessment tax, etc.

Income-tax Department will generally allow a taxpayer to claim the credit of taxes as reflected in his Form 26AS.

What to do if discrepancies appear in actual TDS and TDS credit as per form 26AS?

Every person deducting tax at source has to furnish the details of tax deducted by him to the Income-tax Department. The details will cover the name of the deductee, Permanent Account Number of the deductee, amount of tax deducted, amount paid to the deductee, date of payment of TDS to the credit of Government, etc. On the basis of the details of TDS provided by the deductor, the Income-tax Department will update Form 26AS of the deductee.

Many times the actual amount of TDS and TDS credit as appearing in Form 26AS may differ and it may happen that the TDS credit appearing in Form 26AS may be less as compared to actual TDS, this may happen due to reasons like non-furnishing of TDS details to the Income-tax Department by the deductor, deducting the tax in incorrect Permanent Account Number, etc. In such a case the deductee should approach the deductor and request him to take the necessary steps to rectify the discrepancy due to above reasons.

The Income-tax Department updates the TDS details in Form 26AS on basis of details provided by the person deducting the tax (i.e., the deductor), hence, if there is any default on the part of deductor like non -furnishing of TDS details (i.e., TDS return) to the Income-tax Department, deducting the tax in incorrect Permanents Account Number, etc. then Form 26AS will not reflect the actual TDS. In such a case, the taxpayer may not be able to claim the credit of correct TDS. Hence, the taxpayers are advised to confirm the tax credit appearing in Form 26AS and should reconcile the difference, if any.

​If discrepancy is due to deductor , then he may file TDS/TCS correction statement and correct the same.

What precautions should be taken while filing the return of income?

​​Following is the list of few important steps/points/precautions to be kept in mind while filing the return of income:

1) The first and foremost precaution is to file the return of income on or before the due date. Taxpayers should avoid the practice of filing belated return. Following are the consequences of delay in filing the return of income :

  1. ​Loss (other than house property loss) cannot be carried forward.
  2. Levy of interest under section 234A.
  3. Penalty of Rs. 5,000 under section 271F can be levied. [upto Assessment Year 2017-18]
  4. Fee or Rs 5000 under section 234F will be levied if return is furnished on or before 31st December of Assessment Year fee will be Rs. 10,000 in any other case. [Fee shall be levied @ Rs 1000 if total income does not exceed Rs. 5,00,000]
  5. Exemptions / deductions under section 10A​, section 10B, 80-IA, 80-IAB, 80-IB, 80-IC,  80-ID and 80-IE, 80IAC, 80IBA, 80JJA, 80JJAA, 80LA, 80P, 80PA, 80QQB and 80RRB (w.e.f A.Y 2018-19) are not available.​

​​Belated return cannot be revised under section 139(5). However, w.e.f. 01-04-2017, income-tax return for the Assessment Year 2017-18 and onwards filed under section 139(1) or section 139(4) belated return’ can also be revised.

​2) Taxpayer should download Form 26AS and should confirm actual TDS/TCS/Tax paid. If any discrepancy is observed then suitable action should be taken to reconcile it.

3) Compile and carefully study the documents to be used while filing the return of income like bank statement/passbook, interest certificate, investment proofs for which deductions is to be claimed, books of account and balance sheet and P/L A/c (if applicable), etc. No documents are to be attached along with the return of income.

4) The taxpayer should identify the correct return form applicable in his case.

5) Carefully provide all the information in the return form.

6) Confirm the calculation of total income, deductions (if any), interest (if any), tax liability/refund, etc.

7) If any tax is payable as per the return of income, then the same should be paid before filing the return of income, otherwise return would be treated as defective return.

8) Ensure that other details like PAN, address, e-mail address, bank account details, etc., are correct.

9) After filling all the details in the return of income and after confirmation of all the details, one can proceed with filing the return of income.

10) In case return is filed electronically without digital signature and without electronic verification code do not forget to post the acknowledgement of filing the return of income at CPC Bangalore.

May 072018



The latest ITR-1 form, largely used by the salaried class of taxpayers, has been activated on the official e-filing portal of the Income Tax Department. The single Income Tax Return (ITR) form, notified by the CBDT on April 5, has been put on its website, Other ITRs will be available shortly. The new ITR forms for the assessment year 2018-19 mandate the salaried class assessees to provide their salary breakup, and businessmen their GST number and turnover.

The Central Board of Direct Taxes (CBDT), that frames policy for the tax department, had said some fields have been rationalised in the latest forms and that there is no change in the manner of filing the ITRs as compared to the last year. All the seven ITR forms are to be filed electronically except for some category of taxpayers. The most basic, ITR-1 or Sahaj, to be filled by the salaried class of taxpayers, was used by 3 crore taxpayers during the last financial year.

What is a return of income?

​ITR stands for Income Tax Return​. It is a prescribed form through which the particulars of income earned by a person in a financial year and taxes paid on such income are communicated to the Income-tax Department. It also allows carry -forward of loss and claim refund from income tax department.​Different forms of returns of income are prescribed for filing of returns for different Status and Nature of income. These forms can be downloaded from

What are forms (ITRs) that are published by income tax department for assessment year 2018-19?

The Central Board of Direct Taxes(CBDT) has notified Income Tax Return Forms (ITR Forms) for the Assessment Year 2018-19. For Assessment Year 2018-19:

  • a one page simplified ITR Form-1(Sahaj) has been notified. This ITR Form-1 (Sahaj) can be filed by an individual who is resident other than not ordinarily resident, having income upto Rs.50 lakh and who is receiving income from salary, one house property / other income (interest etc.).
  • ITR Form-2 has also been rationalised by providing that Individuals and HUFs having income under any head other than business or profession
  • ITR Form -3 has to be filed by Individual and HUF assessee having income under the head business or profession
  • ITR Form -4 Sugam has to be filled by Individual and HUF paying taxes on presumptive basis.
  • ITR Form – 5 has to be filed by persons other than,- (i) individual, (ii) HUF, (iii) company and (iv) person filing Form ITR-7
  • ITR Form – 6 is applicable for Companies other than companies claiming exemption under section 11
  • ITR Form – 7 is to be filed by persons including companies required to furnish return under sections 139(4A) or 139(4B) or 139(4C) or 139(4D) or 139(4E) or 139(4F)
  • ITR Form – V Acknowledgement

 Special information for Non – Residents assessee:

In case of non-residents, the requirement of furnishing details of any one foreign Bank Account has been provided for the purpose of credit of refund.

Comparison – Earlier ITR forms and ITR forms 2018-19:

Basis of comparison ITR form No Earlier Form New Form
Assessee Covered ITR – 1 Applicable for both Residents, Residents Not ordinarily resident (RNOR) and also Non-residents Applicable only for resident individuals
Income upto 50 Lacs ITR – 1 ITR was applicable only in case of individuals and HUFs having income upto Rs 50 lacs. Conditions of income upto Rs 50 continues.
Detailed break-up of salary ITR – 1 Detailed need not to be given. Now detailed of salary would necessarily required to be given.
Detailed calculation of income from house property ITR – 1 Earlier it was necessary to be given in ITR – 2 and other forms. New ITR – 1 return forms required detailed calculation of income from house property.
TDS on rent ITR – 1 No such requirement Under the Schedule on TDS, there is also an additional field for furnishing details of TDS as per Form 26QC for TDS made on rent. Also, provision for quoting of PAN of Tenant for such rent cases has also been made.
Income from business and profession ITR – 2 Earlier ITR – 2 can be field by individual having income from business and profession. The ITR-2 is applicable for individuals and HUF having income other than income under the head “Profits and Gains from Business or Profession.Thus, following fields have been removed:-  The field of “Profits and Gains from Business or Profession”

–  Schedule-IF (Income from Firm) and Schedule-BP

–  Schedule AL is also removed.

TDS on rent ITR – 2 No such requirement Under the Schedule on TDS, there is also an additional field for furnishing details of TDS as per Form 26QC for TDS made on rent. Also, provision for quoting of PAN of Tenant for such rent cases has also been made.
Specific applicable ITR – 3 Now ITR -3 is specifically applicable to  individuals and HUF having “Income from Profits and Gains from Business or Profession
General information ITR – 3 a field relating to Section 115H has been added which relates to benefit being availed under certain cases even after the taxpayer becomes a resident.
Schedule PL ITR – 3 Fields under Schedule PL have been modified to include GST related details

May 042018
TDS Rate Chart Assessment Year 2019-2020

TDS Rate Chart for Assessment Year 2019-2020

Download PDF Version of TDS Rate Chart for A.Y. 2019-2020

May 022018

Due dates for the Month of May 2018
Income Tax
– TDS Payment for April
– Details of outward supplies of taxable goods and/or services effected – GST1 for April
– Return for authorities deducting tax at source – GSTR 7 for April
– Details of supplies effected through e-commerce operator and the amount of tax collected –
GSTR 8 for April
– Return for Input Service Distributor – GSTR 6 for April
Providend Fund
– PF Payment for April
– ESIC Payment for April
– Details of inward supplies of taxable goods and/or services effected claiming input tax credit – GSTR 2 for April
– Monthly return on the basis of finalisation of details of outward supplies and inward supplies along with the payment of amount of tax – GSTR 3 for April
– Return for Non-Resident foreign taxable person – GSTR 5 for April
– Details of Inward Supplies to be furnished by a person having UIN and claiming refund – GSR 11 for April.
Profession Tax
– Monthly Return (covering salary paid for the preceding month) (Tax Rs. 50,000 or more)
Income Tax
– TDS / TCS Quarterly Statements (Other than Government deductor) for January to March
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