Skip to content


D.K. Agarwal Vs. Government of India - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 4803 of 1996 11 December 2000
Reported in[2001]115TAXMAN640(Delhi)
AppellantD.K. Agarwal
RespondentGovernment of India
Advocates: Sanjay Poddar, for the assessed; R.D. Jolly, for the Revenu
Excerpt:
.....he has contended that in the application of the petitioner before the appropriate authority under section 80rra for approval of terms and conditions in column 11, the petitioner has indicated the status in which he was employed under both columns 01 as well as 02, i. , employee as well as advisor, whereas in the application filed before the appropriate authority which has been filed by the learned counsel for the revenue along with the counter-affidavit, the petitioner has only indicated against column 02, as an advisor......advisor.6. mr. jolly has taken the same objection which was put forth before the supreme court in aditya v. birlas case (supra) that section 80rra was inserted only to encourage salaried employees who were going abroad where the cost of living was very high for availing an exemption from tax on the salary earned abroad by working as a technician.7. i have carefully considered the arguments advanced by learned counsels for both the parties.8. at the outset, i see no force in the arguments of counsel for the respondent that the petitioner has not approached this court with clean hands. when the copy of the application has been filed by the respondent themselves and the petitioner has only put a tick mark under column 11 against entry 02 as advisor, the petitioner in unambiguous terms has.....
Judgment:

Vijender Jain, J.

The petitioner is aggrieved by the order passed by the assessing authority that the petitioner was not entitled to deduction either in terms of section 80RRA or section 80-0 of the Income Tax Act, 1961 (hereinafter referred to as the Act).

2. It is the case of the petitioner that the petitioner after his retirement from Steel Authority of India Ltd. as Executive Director became Advisor to Davy Mckee, U.K. vide their letter dated 4-12-1991 at a monthly remuneration of 600 pounds sterling. The petitioner sought permission of the RBI which is at pages 22 to 25 of the paper book. The petitioner filed the tax returns for the assessment year 1993-94 where the assessment order at page 28 of the paper book was passed by the respondent. Aggrieved by the said order, the petitioner filed an appeal under section 80RRA before the appropriate authority.

3. Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue ), Central Board of Direct Taxes, is the appropriate authority. Joint Secretary vide his letter dated 4-9-1996 took the view that the petitioner was not qualified for grant of approval under section 80RRA.

4. Mr. Poddar, the counsel for the petitioner, has contended that the respondent failed to appreciate that in order to claim relief under section 80RRA, the applicant was to satisfy that he was a technician, he has rendered his service on remuneration outside India and such remuneration was in foreign currency. He has further contended that the petitioner was an advisor with Davy Mckee on monthly remuneration. He was not authorised to take up job or assignment of any other company in the similar industry. He has further contended that the law laid down by the Supreme Court in CBDT v. Aditya V. Birla : [1988]170ITR137(SC) inter alia, holding that there was no need of a relationship of employer and employee to claim the relief under section 80RRA also helps the case of the petitioner. He has further contended that there is no difference between a consultant and an advisor and the distinction drawn in this regard by the respondent was not sustainable in law. Mr. Poddar further contended that even otherwise a Division Bench of Delhi High Court in C.S. Mathur v. CBDT : [1999]235ITR769(Delhi) has taken the view that the amplitude of the expression employer-employee covers the cases of consultant or a technician.

5. On the other hand, the counsel for the respondent has contended that the petitioner has not approached this court with clean hands. He has contended that in the application of the petitioner before the appropriate authority under section 80RRA for approval of terms and conditions in column 11, the petitioner has indicated the status in which he was employed under both columns 01 as well as 02, i.e., employee as well as advisor, whereas in the application filed before the appropriate authority which has been filed by the learned counsel for the revenue along with the counter-affidavit, the petitioner has only indicated against column 02, as an advisor.

6. Mr. Jolly has taken the same objection which was put forth before the Supreme Court in Aditya V. Birlas case (supra) that section 80RRA was inserted only to encourage salaried employees who were going abroad where the cost of living was very high for availing an exemption from tax on the salary earned abroad by working as a technician.

7. I have carefully considered the arguments advanced by learned counsels for both the parties.

8. At the outset, I see no force in the arguments of counsel for the respondent that the petitioner has not approached this court with clean hands. When the copy of the application has been filed by the respondent themselves and the petitioner has only put a tick mark under column 11 against entry 02 as advisor, the petitioner in unambiguous terms has taken the stand that he was engaged by DEVI MECCI as an advisor. Question of concealment by the petitioner could have been there if in the application filed before the appropriate authority, the petitioner would have taken the stand that he was an employee. It is not disputed that the petitioner was receiving remuneration of 600 pounds sterling per month in the capacity of an advisor. The only ground on which the benefit was not given to the petitioner was that the benefit of approval to be given under section 80RRA could be given to those governed by the employer and employee relationship. It was also not granted on the ground that the Supreme Courts decision in Aditya V. Birlas case (supra) of section 80-O through the Finance Act, 1991 with effect from 1-4-1992 was to nullify the effect of Aditya V. Birlas case (supra). In C.S. Mathurs case (supra), the Division Bench of this court in paragraph 13 has held as under:

'In CBDT v. Aditya V. Birla : [1988]170ITR137(SC) , the approval under section 80RRA was denied to the respondent by the tax authorities on the ground that according to the terms and conditions of the agreement, the status of the respondent was that of a consultant and not of an employee. It was submitted on behalf of the revenue that the provision should be confined to deduction to be given only in the case of the remuneration given to an employee and not to fees paid to a consultant or a technician. Their Lordships rejected the contention as not acceptable.'

9. Relying on Aditya V. Birlas case (supra), the Division Bench of this court further held that the expression employer-employee covers the case of consultant or technician. In the scheme of section nothing is there to warrant any exception as contended by the revenue. In para 13.2 while reproducing from Aditya V. Birlas case (supra), the court further held :

' .... We find that there is no warrant in section to restrain the expression remuneration received from a foreign employee only to the salary received by the employee. In our opinion, employment as a technician for the purpose indicated by Shri Palkhivala could also be an object of the Act and in such a case, the fee received by a consultant or a technician would also come within the purview of the section concerned.'

The court further held:

' .. . . We are, thereforee, of the opinion that the petitioner--a chartered accountant--having agreed to render his consultancy services to foreign companies in lieu of remuneration, and though not employed on full-time basis in the sense of creating master-servant relationship, would still be deemed to have been employed so as to attract the applicability of section 80RRA.'

10. This observation of the Division Bench in C.S. Mathurs case (supra) applies squarely to the case of the petitioner. The petitioner as an advisor would still be deemed to have been employed as an employee so as to attract the applicability of section 80RRA. With regard to the arguments advanced by the respondent/revenue that after the enactment of section 80-O the effect of Aditya V. Birlas case (supra) would be to nullify the effect of Aditya V. Birlas case (supra) is not sustainable. Division Bench while considering the same arguments further held:

'We have already stated and we reiterate that the submission of the learned standing counsel for the revenue that the enactment of the amendment in the year 1992 in the provision of section 80-O amounts to implied partial repeal of section 80RRA (as interpreted in the case of Aditya V. Birla) has not appealed to us. The theory of implied repeal has to be accepted with caution. The inference of implied repeal cannot be drawn as it is necessarily spelled out. And certainly there is no express repeal of section 80RRA, even partially.'

11. From any angle I do not find any force in arguments advanced by the counsel for the respondent. I allow the writ petition. Impugned order dated 4-9-1996 refusing the grant of approval under section 80RRA is hereby quashed. The effect would be that the petitioner would, in fact, will be entitled for grant of permission under section 80RRA.

12. The petition is allowed. Rule is made absolute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //