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TMI Blog1993 (1) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer the matter was carried before the DCIT (Appeals) by way of first appeal. It was contended before the DCIT (Appeals) that the SDA was granted to the civilian employees of the Central Government serving in the States and Union Territories of the North Eastern Region as per notification of the Government of India, Ministry of Finance, Department of expenditure in Office Memorandum No. 20014/3/1983-E-IV dated 14-12-1983. It was also contended that the allowance was in pursuance of the recommendation of a committee appointed by the Government of India to review the existing allowance and facilities admissible to the various categories of civilian Central Government employees in recognition of the need for attracting and retaining services of competent officers for service in the North Eastern Region comprising the States of Assam, Meghalaya, Manipur, Nagaland and Tripura and the then Union Territories of Arunachal Pradesh and Mizoram. The SDA was initially given to Central Government employees who have all India transfer liabilities at the rate of 25 per cent of the basic pay subject at a ceiling of Rs. 400 on being posted to any such area in the North Eastern Region. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider and appreciate the provisions of section 10(14) in proper perspective and has unjustifiably given relief to the assessee directing the Assessing Officer to delete the SDA from the purview of taxation and holding that the SDA was not part of salary. It is the case of Departmental Representative that the SDA also cannot be considered as a compensatory allowance to come within the benefit provided by the Central Government in notification No. SO. 144(E) dated 21-12-1989 as amended by notification No. SO 259(E) dated 27-3-1990, a copy of which has been filed before us for our perusal. The Departmental Representative, therefore, pleaded that the DCIT(Appeals) committed a grave error in allowing the appeal of the assessee and, therefore, the impugned order deserves to be reversed. 4. The assessee's counsel, Shri A. B. Das, reiterated the submissions made before the DCIT(Appeals) and relied upon the reasons and conclusion given by him in the impugned order and urged that the Departmental appeal be dismissed. 5. We have given our anxious consideration to the submissions made before us by the representatives of both the parties and perused the materials available with us in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his office or employment of profit are ordinarily performed by him or at the place where he ordinarily resides, or to compensate him for the increased cost of living, as the Central Government may, by notification in the Official Gazette, specify, to the extent specified in the notification. Provided that nothing in sub-clause (ii) shall apply to any allowance in the nature of personal allowance granted to the assessee to remunerate or compensate him for performing duties of a special nature relating to his office or employment unless such allowance is related to the place of his posting or residence. " Therefore, if any assessee who intends to take the advantage and benefit in respect of any allowance granted to it then he has to come within the provisions of sub-clause (14) of section 10 of the Act and this sub-clause (14) clearly specifies that any allowance or special allowance or benefit not being in nature of perquisite within the meaning of clause (2) of section 17 has to be to the extent as may be specified by the Central Government by notification in the Official Gazette. The proviso to sub-clause (14) of section 10 states that nothing in sub-clause (ii)) shall apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that a receipt which is foreseen, known, anticipated and provided for by agreement cannot be regarded as casual even if it is likely to recur every or at least for a considerable time. 7. It will be useful to refer some of the observations of Viscount Cave in Reed v. Seymour [1927] 11 TC 625 at page 646. " ... it must now (I think) be taken as settled that they (salaries, fees, wages, perquisites, or profits whatsoever from an office or employment of profit) include all payments made to the holder of an office or employment as such --- that is to say, by way of remuneration for his services, even though such payments may be volutary --- but that they do not include a mere gift or present (such as a testimonial) which is made to him on personal grounds and not by way of payment for his services. The question to be answered is, as... ' Is it in the end of personal gift or is it remuneration ? If the latter, it is subject to the tax, if the former, it is not. " The Calcutta High Court in David Mitchell v. CIT [1956] (30 ITR 701 at pages 715 and 716) laid down the tests as under : " The test for determining whether casual and non-recurring receipts of this kind are mere g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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