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TMI Blog1973 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case, the Tribunal was legally correct in holding that payment at the rate of 10% received as clerkage by the assessee as a result of contract between him and the client as a senior advocate on the Rolls of the Bar Council did not form part of his income ? " The question relates to the assessment year 1969-70. The assessee is practising as a senior advocate, generally, before this court. He returned gross professional income at Rs. 80,745. He claimed that 10% of this amount, namely, Rs. 8,074.50, was received in addition by him for being paid as clerkage to his clerical establishment and was not assessable as his income. The Income-tax Officer held that the clerkage is received by the assessee and then paid to the clerks and so i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the disputed deduction. The Commissioner of Income-tax has filed the connected application under section 256(2) of the Income-tax Act, 1961, praying that seven additional questions may be required to be referred to this court. At the hearing, learned counsel ,appearing for the Commissioner confined his submission to questions Nos. 6 and 7 mentioned in the application. These two questions relate to the finding that the daughter-in-law rendered services to the assessee in his professional work and, therefore, the payment was justified. These questions would arise only if the other finding of the Tribunal upon which it has referred the question to us, namely, that the clerkage did not form part of the income of the assessee, is answere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and 5 of Chapter 26 which deals with the advocate's clerk. Rule 4 gives the form of an application for the registration of a clerk which is to be made by an advocate by letter addressed to the Deputy Registrar. This rule applies to all advocates, be they senior or otherwise. Learned counsel emphasised that the form prescribed by rule 4 begins with the phrase " I beg " and urged that this rule does not apply to senior advocates because a senior advocate is not expected to use the phrase " I beg ". No authority or any provision was cited in support of this submission and we are not aware of any practice or any principle of propriety which may preclude a senior counsel from using the prescribed language beginning " I beg" in an application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kind in any court or tribunal in India or undertake convincing work of any kind whatsoever but, this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior. (iv) accept directly from a client any brief or instructions to appear in any court or tribunal in India. Explanation :- In this order- (i) 'acting' means filing an appearance or any pleadings or applications in any court or tribunal in India, or any act (other than pleading) required or authorised by law to be done by a party in such court or tribunal either in person or by his recognised agent or by an advocate or attorney on his behalf. (ii) 'tribunal' includes any authority or person legally authorised to take evidence and before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, if a senior advocate maintains a clerk the practice is illegal. Since in the present case, on facts, it has not been disputed that the assessee did maintain a clerical establishment and since it is also not disputed that he received the disputed amount as clerkage only, we are not inclined to accept the submission that the receipt of clerk age was illegal or invalid. In our opinion the view of the Tribural that this receipt was not part of the professional income of the assessee, on the materials, is eminently justified. We would answer the question referred to us in the affirmative, in favour of the assessee and against the department. In view of our answer to the question referred to us the application made by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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