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TMI Blog2006 (11) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the arguments advanced by the parties and the decisions relied upon by them. 3. At the outset of hearing, the learned Authorised Representative raised a preliminary objection regarding the maintainability of the Departmental appeal as having tax effect below Rs. 1 lac as per the CBDT Instruction F. No. 279/126/98-ITJ, dt. 27th March, 2000. He placed reliance on the following decisions: (i) CWT vs. Girdhari Lal Saraf (1991) 91 CTR (Raj) 225 : (1991) 190 ITR 264 (Raj); (ii) CIT vs. Ratan Chand Lodha (1993) 110 CTR (Raj) 141 : (1993) 203 ITR 503 (Raj); (iii) CIT vs. Cameo Colour Co. (2002) 173 CTR (Bom) 255 : (2002) 254 ITR 565 (Bom); (iv) CIT vs. Wolkem (P) Ltd. (1997) 57 TTJ (Jp) 397; (v) ITO vs. Chandra Kant S., Dharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in this case notice under s. 143(2) has been issued on 22nd July, 2002. The learned Departmental Representative on the other hand opposed this objection, on the basis of record available with him that the correct date for filing of return is 30th July, 2001 and not 30th June, 2001 as submitted by the learned Authorised Representative. Since there is confusion about the correctness of the date of furnishing of return and in the assessment order nothing has been mentioned about the date of service of notice issued under s. 143(2) of the Act, the matter is remanded to the file of the AO to verify the correctness of the objection raised by the assessee and decide the matter about the validity of notice issued under s. 143(2) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alary. He also denied the expenditure claimed by the assessee on stationery, newspapers and magazines, etc. The learned CIT(A) has however allowed the claim of the assessee discussing the terms and conditions of the contract between the assessee and M/s Allen Career Institute as of professional. The same has been questioned by the Revenue before us. The learned Departmental Representative submitted that the assessee himself had treated the receipt as salary receipt in view of tax deduction certificate issued by the employer, the tax was being deducted @ 33 per cent treating the payment as salary. The learned Departmental Representative while placing reliance on assessment order submitted that the assessee in his statements recorded by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T returns of M/s Allen Career Institute also fall under the jurisdiction of the same AO and in the TDS as well as IT returns of the institute the nature of payment to the assessee has been shown as professional payment and these returns were accepted by the Department as such. He placed reliance on the following decisions: (i) Chintaman Rao vs. State of MP AIR 1958 SC 388, 392; (ii) Silver Jubilee Tailoring House vs. Chief Inspector AIR 1974 SC 37; (iii) CIT vs. Mrs. Durga Khote (1952) 21 ITR 22 (Bom); (iv) Indian Medical Association vs. V.P. Shantha 86 Comp Cas 806 (SC). 8. The learned Authorised Representative submitted further that in similar other cases like Mr. Vinod Kumawat, Mr. Chinarao Chaudhary the Department has accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aff; the assessee was given a particular portion of a particular subject to teach and to be accomplished in prescribed time; during the year the assessee claimed to have paid Rs. 60,000 to Mr. Vijay Soni employed by him for assisting him and preparing notes for students on the basis of which he had filed return of income charging income under the head Salary; last contract was for Rs. 5 lac for asst. yr. 2000-01 and subsequently in asst. yr. 2001-02 the contract amount increased to Rs. 9 lac; and dearness allowance, conveyance allowance, perquisites, provident fund contribution or other benefits were not provided to the assessee. All these terms and conditions of the agreement suggest that there was no relation of employer and employee betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a professional in terms of an agreement but totality of facts and circumstances are to be seen, which in our view are the extent of control of a person who is taking services from other for an agreed payment, the manner in which the person gets services and the duration of services besides type of facilities provided by the person getting the work done. In the case of an employer and employee, the nature of control and its manner are different than those in a case of work done on contract basis. In our view in the present case the term "services" used for the assigned job done by the assessee for the institute have been treated as the services rendered by an employee ignoring the vital factor that in a case of employer and employee overall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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