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TMI Blog1986 (12) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... as been endorsed by the AAC, Indore. The assessee has come up in second appeal before the Tribunal. 2. I have heard the representatives of the parties at length in this appeal. The assessee's contention was that he was not employed by any employer. According to him a Judge of the High Court holds office under the Constitution and there is no employer of the assessee. The salary paid to him is charged on the consolidated funds of India and consequently there is no relationship of master and servant between the assessee and the Government. In this behalf reliance was placed by the assessee's representative upon a decision of the Hon'ble Supreme Court of India in Union of India vs. Sankalchand AIR 1977 SC 2328. Reliance was particularly place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er previous year." 4. It was further contended that as pointed out above a High Court Judge had no employer and, therefore, none of the clauses above quoted applied, so as to render the emoluments received by the assessee as income chargeable to tax under the head "salaries". In this behalf, reference was made to a decision of Hon'ble Supreme Court in Nalinikant Ambalal Mody vs. CIT, Bombay (1966) 61 ITR 428 (SC). In this case, the assessee was an advocate, who had adopted calendar year and has his accounting year and kept accounts on cash basis. He ceased to carry on his profession till 1st March, 1957, when he was elevated as a Judge of the High Court. In this year 1958 and 1959, when he did not carry on any profession, he received certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Hon'ble Supreme Court of India already admitted the appeal of Justice Devkinandan, Civil Appeal No. 411 (NT) of 1982 and directed certain question to be heard by a Constitution Bench of the Hon'ble Supreme Court as reported at (1983) 142 ITR (SC) 98. One of the questions referred was as to whether salary of a Supreme Court Judge was at all taxable. 6. After carefully considering all the facts and circumstances of the case and the relevant provisions of law, I am afraid, I have not been able to pursuade myself to accept the assessee's contention. In this behalf, my first point is that s. 6 of the Indian IT Act, 1922 reads as under: "Save as otherwise provided by this Act, the following heads of income, profits and gains, shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e independence nor other attribute of the judiciary can be effected by a general income tax which charges their official incomes on the same footing as the income of other citizens." 9. It is correct that in this very order certain points regarding the competence of the parliament to tax the salary of the High Court and the Supreme Court Judges have been raised, but sitting as a Member of the ITAT, it is not for me to comment upon the competence of the legislature. I have only to interpret the provisions of the IT Act. Nowhere has so far been the salary claimed to be exempt from tax altogether. It is also not a casual income so as to merit any exemption from income tax. It is a salary income as admitted by the assessee's representative him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in case of any employee may be issued by one person. The real liability to pay him may be of another person and technically an employer may be a third person. Appointment orders of Government employees are issued by particular dignitaries authorised to appoint them, but the employer is the State Government or the Central Government as the case may be. To my mind the employer for the purpose of IT Act means the person, who is responsible to pay salaries and from whose pocket the salary goes out. 10. There is another aspect of the matter Tax has been deducted at source out of the salaries paid to the assessee. If the same was not taxable no body had a right to deduct any tax at source and the deduction will be no deduction in the eye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word 'employer' used in s. 15 of the IT Act has no particular significance in the sense that if it is not possible to find out as to who is the employer of a particular assessee, his income would not be liable to tax under the heads "Salaries", when it is clearly a salary otherwise. What I mean to say is that the use of the word employer by the legislature in this connection may be inadvertent and to tax such salaries as could be ascribed to a particular employer because the intention was to tax every kind of income as s. 14 would show and therefore, there was no intention to exclude such salaries, which a person received from any body, who could not be strictly called to be employer of the recipient. 13. Consequently, I am of the opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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