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2000 DIGILAW 910 (DEL)

S. K. DEY v. COMMISSIONER OF INCOME TAX

2000-10-23

ARIJIT PASAYAT, D.K.JAIN

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Arijit Pasayat ( 1 ) AT the instance of the assessee, following questions have been referred for opinion of this Court under Section 256 (1) of the Income-tax Act, 1961 (in short, the Act ). " (1) Whether on the facts and circumstances of the case, the assessee is an official of U. N. O. under United Nations (Privileges and Immunities) Act No. 46 of 1947 ? (2) Whether on the facts and circumstances of the case, the income from U. N. O. and writing in the newspapers was exempt being casual or nonrecurring in nature ?" ( 2 ) THE assessee had filed return for the assessment year 1972-73. In part 4 of the return, it was indicated that a total sum of Rs. 25,622. 00- was not taxable and comprised of: (A) Sundry payments received for articles in the press Rs. 1,050. 00. (B) Honorarium for presiding over a seminar Rs. 100. 00. (C) Casual income received from U. N. for assignment in Bangladesh Rs. 24,9720. 00. Income-tax Officer did not accept his stand about the income being casual and non- recurring. The matter was carried in appeal before the Appellate Assistant Commissioner of Income-tax, A-Range, New Delhi (in short, the AAC ). The said Authority was of the view that the sum of Rs. 24,972. 00 and Rs. 1,050. 00 were non-taxable. Revenue carried the matter in appeal before the Tribunal. A cross-objection was also filed by the assessee. The Tribunal on consideration of the rival stands came of the following conclusions: "10. After hearing both the parties and duly considering the Special Service Agreement as also United Nations (Privileges and Immunities) Act, 1947 (Act. No. 46 of 1947), we are of the view that the assessee was an independent contractor as specifically stated in Section 4 of the Special Service Agreement and he was not a staff member of the United Nations as specifically stated in that clause. Therefore, the benefit available under Section 18 (b) of Article V was not available to the assessee. That would explain the reason of non- communication of the category as understood under Section 17 of the Article V. We, therefore, hold that the assessee was an independent contractor not being considered in any respect as a staff member of the United Nations, therefore, the receipt of Rs. 24,972. That would explain the reason of non- communication of the category as understood under Section 17 of the Article V. We, therefore, hold that the assessee was an independent contractor not being considered in any respect as a staff member of the United Nations, therefore, the receipt of Rs. 24,972. 00 was not exempt because the assessee was not the United Nations employee. In view of that matter, we reverse the order of the Appellate Assistant Commissioner in which he held that the assessee was an official of the United Nations and hold that Section 4 of the Special Service Agreement conclusively concluded the status of the assessee and, therefore, the amount was not exempt. 11. That leaves us with the exclusion of Rs. 1,050. 00 as done by the Appellate Assistant Commissioner. It was not denied by the learned Counsel for the assessee that before the assessee chanced to write these articles, after meeting the editor of the newspaper, he had many articles in the press to his credit. Therefore, in view of that factual position, we hold that the receipt was not casual or non-recurring but was taxable. We, therefore, allow the departmental appeal and reverse the order of the Appellate Assistant Commissioner on the two issues which are the subject matter of the departmental appeal. 12. That leaves us with the cross-objection of the assessee. The learned Counsel fothe assessee in support of his cross-objection relied on 67 ITR 616, and contended that the receipts were casual or non-recurring in nature. The learned Departmental Representative on the other hand contended that the receipt had rightly been held to be taxable by the Appellate Assistant Commissioner. Reliance placed on Ramanathan Chettiar v. Commissioner of Income-tax, Madras, (1967) 63 ITR 458 (SC ). " ( 3 ) THE departmental appeal was allowed and assessee s cross-objection was dismissed. Accepting prayer for reference, questions have been referred for opinion of this Court. In spite of notice, there is no appearance on behalf of the assessee. ( 4 ) HEARD the learned Counsel for Revenue. ( 5 ) ON a perusal of the quoted portion of the order, it is to be noted that the Tribunal with reference of the materials on record came to conclusions about taxability of the amounts in question. In spite of notice, there is no appearance on behalf of the assessee. ( 4 ) HEARD the learned Counsel for Revenue. ( 5 ) ON a perusal of the quoted portion of the order, it is to be noted that the Tribunal with reference of the materials on record came to conclusions about taxability of the amounts in question. The conclusions are essentially factual and in our opinion, no question of law arises out of the Tribunal s order. Therefore, we decline to answer the questions Reference disposed of.