S.K. Dey vs Commissioner Of Income-Tax
2000 Latest Caselaw 1076 Del

JUDGMENT

Aprijit Pasayat, C.J.

1. At the instance of the assessed, the following questions have been referred for the opinion of this court under Section 256(1) of the Income-tax Act, 1961 (in short "the Act") :

"1. Whether, on the facts and in the circumstances of the case, the asses-see is an official of U.N.O. under the United Nations (Privileges and Immunities) Act No. 46 of 1947 ?

2. Whether, on the facts and in the 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 assessed had filed a return for the assessment year 1972-73. In Part 4 of the return, it was indicated that a total sum of Rs. 25,622 was not taxable and was comprised of :

(a) Sundry payments received for articles in the press Rs. 1,050.

(b) Honorarium for presiding over a seminar Rs. 100.

(c) Casual income received from U.N. for assignment in Bangladesh Rs. 24,972.

3. The 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 sums of Rs. 24,972 and Rs. 1,050 were non-taxable. The Revenue carried the matter in appeal before the Tribunal. A cross-objection was also filed by the assessed. The Tribunal on consideration of the rival stands came to the following conclusions :

"10. After hearing both the parties and duly considering the Special Service Agreement, as also the United Nations (Privileges and Immunities) Act, 1947 (Act No. 46 of 1947), we are of the view that the assessed 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 assessed. That would explain the reason of non-communication of the category as understood under Section 17 of article V. We, therefore, hold that the assessed 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 was not exempt because the assessed 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 assessed was an official of the United Nations and hold that Section 4 of the Special Service Agreement conclusively concluded the status of the assessed and, therefore, the amount was not exempt.

11. That leaves us with the exclusion of Rs. 1,050 as done by the Appellate Assistant Commissioner. It was not denied by learned counsel for the assessed that before the assessed 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 assessed. Learned counsel for the assessed in support of his cross-objection relied on B. Malick v. CIT [1968] 67 ITR 616 (All) and contended that the receipts were casual or nonrecurring 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 RM. AR. AR. RM. AR. AR. Ramanathan Chettiar v. CIT ."

4. The Departmental appeal was allowed and the assessed's cross-objection was dismissed. Accepting the prayer for reference, the questions have been referred for the opinion of this court. In spite of notice, there is no appearance on behalf of the assessed.

5. Heard learned counsel for the Revenue.

6. On a perusal of the quoted portion of the order, it is to be noted that the Tribunal with reference to the materials on record came to the conclusions about the 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.