Delhi H.C : Whether, on the facts and circumstances of the case, the assessee is an official of UNO under United National (Privileges and Immunities) Act No. 46 of 1947 ?

High Court Of Delhi

S.K. Dey vs. CIT

Sections 2(24), 10(3)

Asst. year 1972-73

Arijit Pasayat, C.J. & D.K. Jain, J.

IT Ref. No. 119 of 1979

23rd October, 2000

Decision in favour of Answer declined

Counsel Appeared : None, for the Petitioner : R.C. Pandey, Smt. Premlata Bansal & Ajay Jha, for the Respondent

JUDGMENT

ARIJIT PASAYAT, C.J. :

At the instance of the assessee, following questions have been referred for opinion of this Court under s. 256(1) of the IT Act, 1961 (in short, the Act).

“1. Whether, on the facts and circumstances of the case, the assessee is an official of UNO under United National (Privileges and Immunities) Act No. 46 of 1947 ?

2. Whether, on the facts and circumstances of the case, the income from UNO and writing in the newspapers was exempt being casual or non-recurring in nature ?”

2. The assessee had filed return for the asst. yr. 1972-73. In part 4 of the return, it was indicated that a total sum of Rs. 25,622 was not taxable and comprised of the : (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 UN for assignment in Bangladesh Rs. 24,972. The ITO did not accept his stand about the income being casual and non-recurring. The matter was carried in appeal before the AAC, A-Range, New Delhi. The said authority was of the view that the sum of Rs. 24,972 and Rs. 1,050 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 asspecifically stated in s. 4 of the Special Service Agreement and he was not a staff member of the United Nations asspecifically stated in that clause. Therefore, the benefit available under s. 18(b) of art. V was not available to the assessee. That would explain the reason of non-communication of the category as understood under s. 17 of art. 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 was not exempt because the assessee was not the United Nations employee. In view of that matter, we reverse the order of the AAC in which he held that the assessee was an official of the United Nations and hold that s. 4 of the Special Service Agreement conclusively concluded the status of the assessee and, therefore the amount was not exempt.

That leaves us with the exclusion of Rs. 1,050 as done by the AAC. 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 AAC on the two issues which are the subject-matter of the Departmental appeal. That leaves us with the cross-objection of the assessee. The learned counsel for the assessee in support of his cross-objection relied on B. Malik vs. CIT (1968) 67 ITR 616 (All) : TC 32R.335 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 AAC. Reliance placed on Ramanathan Chettiar vs. CIT (1967) 63 ITR 458 (SC) : TC 32R.296.

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. Heard the learned counsel for Revenue. 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.

[Citation : 255 ITR 270]

Malcare WordPress Security