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TMI Blog2013 (12) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Shrawat This is an appeal filed by the assessee arising from the order of learned CIT(A) Gandhinagar, dated 1.10.2009. The assessee has raised the following grounds: The Ld. Assessing Officer and also Hon. CIT(A) have erred in treating the income from Retainer Ship Fees as income from salary and not income from profession. 2. Facts in brief as emerged from the corresponding assessment order passed u/s. 143(3) dated 12.12.2008 were that the assessee in individual capacity has filed the return wherein under the head Professional fees disclosed an income of Rs.11,65,161/-. The assessee has claimed several expenditure of Rs.2,27,969/-. On perusal of TDS certificate, it was noted by the AO that the assessee had received a sum of Rs.1,00,000/- per month w.e.f. August, 2005 and monthly tax had also been deducted. Prior to that, assessee was receiving Rs.90,000/- per month. The assessee has furnished a letter of the said institution with a reference to his employment. In the said letter, the terms and conditions were that the Retainership Contract shall be for a period of two years starting from 15th of July, 2009. There was a clause of consolidated fees of Rs.12,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time were that the assessee was agreed to be paid the retainership contract for a fixed period of three years. 4.1 Ld. A.R. has drawn our attention that in that contract letter, it was specifically mentioned that the impugned employment was subject to termination and for that a three months notice was required. Learned AR has also pleaded that the said institute, namely, Dhirubhai Ambani Institute of Information and Communication Technology has also employed several employees and one of them is Dr. Radha M. Parik. Such employees were having different terms of employment. Therefore, according to learned AR a distinction was made at the time of granting of employment between a regular employee and a person hired on contract basis. She has pleaded that the assessee was engaged as a contract for service and not as a contract of service , therefore, not to be treated as a salaried employee. 5. On the other hand, from the side of the Revenue, Learned DR, Mr. J.P. Jangid, has supported the orders of the authorities below. He has pleaded that in terms of the provisions of Section 17 of the IT Act Salary includes wages, any fees, perquisite etc., therefore, the assessee has recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 prescribes that nay person responsible for paying any income chargeable under the head Salaries shall at the time of payment deduct income tax on the amount payable. As against that Section 194-J prescribes that any person who is responsible for paying to a resident any sum by way of (a) fees for professional services. (b) fees for technical services, (c) Royalty and (d) any sum referred to in clause (va) of section 28 of the IT Act shall at the time of credit of such sum to the account of payee deduct an amount equal to 10% of such sum as income-tax. The term "Salary" is defined in section 17 of the I.T.Act which is an inclusive definition. However, this definition says that wages, gratuity, annuity, pension, any fees in addition to salary are inclusive in the definition of salary. Thus in our understanding a Fees is part of the Salary if it is received in addition to the Salary, but not a part of the salary if received independently. To determine whether an amount received by a person is in the nature of salary or not, it is necessary to examine over all circumstances and primarily the terms and conditions of the employment. We have already scrutinized the terms and conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them was in nature of professional fees. The contract with them by the assessee was one of contract for service and not of service. Therefore, tax was being rightly deducted at source under section 194 and Section 192 of the Act had no application. The findings and conclusions of the Tribunal are proper. There is no error of appreciation. We are in agreement with the same. No substantial question of law arises for consideration. 6.3 Before us an another order of respected co-ordinate Bench ITAT C Bench Ahmedabad pronounced in the case of Joshi Technology (ITA No.906/Ahd/2010 for A.Y. 2006-07) dated 1.5.2013 has been cited. In that order the issue was whether FBT is applicable in the relationship of an employer and an employee. The relevant paragraph is reproduced below:- Even in the case of Calcutta Medical Research Institute reported at TOO) 75 ITD 484 (Cal.) it was opined that when a person is engaged to manage a business, then he may be a servant or an agent according to the nature of a service. In a situation, where the liability for deduction of tax was fulfilled u/s.192 of IT Act, then it is established that there was relationship of master and servant. Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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