Commissioner of Income-tax Vs. Ramji Das Naranga - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 4. according to learned counsel for the revenue, the facts on record clearly indicate that the payment received by the assessee was in the nature of salary and the conclusions of the appellate authority are erroneous.a. pasayat, j. 1. at the instance of the revenue, the following question has been referred to this court by the income-tax appellate tribunal, cuttack bench, cuttack ( hereinafter referred to as 'the tribunal' ), under section 256(1) of the income-tax act, 1961 (in short, 'the act') :'whether, on the facts and in the circumstances of the case, thetribunal is justified in holding that the remuneration received by theassessee be assessed as income from 'other sources' and not under the head'salary' and as such deduction at the rate of 30% be allowed on accountof expenses ?'2. the facts as are relevant for the purpose of determination of the question are as follows.3. during the assessment year 1982-83, sri ramji das naranga (hereinafter referred to as 'the assessee') reflected in the return of income that he had received a sum of rs. 53,548 from one miss anita girdhar. according to him, this amount less the expenses of rs. 21,419 was to be taxed under the head 'other sources'. the assessing officer did not accept the claim. he was of the view that the assessee was an employee and, accordingly, assessed an amount of rs. 53,548 under the head 'salary'. he allowed deduction as permissible under section 16(i) of the act. the assessee carried the matter in appeal before the appellate assistant commissioner of income-tax, berhampur range, berhampur (in short, 'the aac'). the said authority considered the fact that miss girdhar was a partner in several partnership firms and, as per the agreement entered into between the assessee and miss girdhar, the former was to represent the latter in various work sites situated at different places away from bhubaneswar. the assessee was supposed to make efforts so that the works were executed diligently and faithfully. he was entitled to 40% of the net profits accrued to miss girdhar from such partnership firms. this, according to the learned appellate assistant commissioner, reflected that there was no employer and employee relationship between the assessee and miss girdhar and that the amount was taxable under the head 'other sources' after deduction of reasonable expenses. the revenue carried the matter before the tribunal which affirmed the conclusions of the appellate assistant commissioner. on being moved by the revenue, the question as indicated above has been referred to this court for opinion.4. according to learned counsel for the revenue, the facts on record clearly indicate that the payment received by the assessee was in the nature of salary and the conclusions of the appellate authority are erroneous. there is no appearance on behalf of the assessee in spite of notice.5. we find that the assessee was entitled to certain percentage of the net profit receivable by miss girdhar from the firms where she was a partner and consequently was required to look after her interest and perform his duties as a man of prudence. there is no material to show that the assessee was acting as an employee. the tribunal has recorded a categorical finding that there was not even an iota of evidence to support the revenue's stand of existence of relationship of employer and employee between the assessee and miss girdhar. this essentially is a conclusion on facts. additionally, we find that the agreement between the assessee and miss girdhar as referred to in detail by the appellate assistant commissioner and the tribunal indicates the nature of the duties which the assessee was required to undertake. from the agreement, it cannot be discerned that there was an element of relationship of employer and employee.6. the income has been rightly held to be taxable under the head 'income from other sources'. we accordingly answer the question in the affirmative. no costs.d.m. patnaik, j. 7. i agree.