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Barendra Prosad Roy and ors. Vs. Income-tax Officer, a Ward, Foreign Section and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 200 of 1971 (Matter No. 163 of 1970)
Judge
Reported in77CWN396,[1973]91ITR82(Cal)
ActsIncome Tax Act, 1961 - Sections 160 and 163(1)
AppellantBarendra Prosad Roy and ors.
Respondentincome-tax Officer, "a" Ward, Foreign Section and ors.
Appellant AdvocateP.P. Ginwalla, ;D. Pal and ;A. Chaudhuri, Advs.
Respondent AdvocateSuhas Sen and ;Ajit Sengupta, Advs.
Cases ReferredIn Queen v. Joseph Doutre
Excerpt:
- .....solicitors acted for the said west german company in london and had instructed to retain mr. blanco white, a barrister with considerable practice in patent actions in london, in the said suits. the appellant's firm, however, did not deliver any brief to mr. blanco white nor did the appellants or any one of them know on what fees mr. blanco white had been engaged inasmuch as the copies of the brief delivered to mr. blanco white by the said london solicitors did not reveal the amount of such fees. the appellant's firm did not pay or undertake any obligation to pay any fees to the said blanco white. on 27th january, 1970, the said suits were called on for hearing. the hearing lasted for several days and it was concluded on the 16th of february, 1970. after the hearing of the said.....
Judgment:

Amiya Kumar Mookerji, J.

1. This appeal is directed against the judgment and order of Sabyasachi Mukharji J. discharging a rule nisi obtained by the appellants in an application under Article 226 of the Constitution on the ground that it is premature as an alternative remedy is provided under the Income-tax Act, 1961.

2. Two suits, one by the Bengal Chemical and Pharmaceutical Works Ltd. and the other by Ferbwerke Hoechst Aktiengesellschaft Vormals Meister Lucius & Burning (a corporation organised under the law of the Federal Republic of Germany), were brought against each other on the alleged infringement of patent on the Original Side of the Calcutta High Court. The appellant's firm under M/s. Orr, Dignam & Co. acted as the solicitors of the aforesaid German company. By a cable dated 31st of May, 1965, a firm of London solicitors, M/s. Ashurst Morris Grisp & Co., informed the appellant's firm that the said London solicitors acted for the said West German company in London and had instructed to retain Mr. Blanco White, a barrister with considerable practice in patent actions in London, in the said suits. The appellant's firm, however, did not deliver any brief to Mr. Blanco White nor did the appellants or any one of them know on what fees Mr. Blanco White had been engaged inasmuch as the copies of the brief delivered to Mr. Blanco White by the said London solicitors did not reveal the amount of such fees. The appellant's firm did not pay or undertake any obligation to pay any fees to the said Blanco White. On 27th January, 1970, the said suits were called on for hearing. The hearing lasted for several days and it was concluded on the 16th of February, 1970. After the hearing of the said suits was over, Mr. Blanco White left India. Thereafter, on 19th February, 1970, the appellant's firm received a letter from the respondent No. 1, the Income-tax Officer, ' A ' Ward, Foreign Section, whereby the appellant's firm was informed that the said respondent understood that M/s. Orr, Dignam & Co. was acting as solicitors for a West German pharmaceutical concern in the patent suits before the Calcutta High Court and the respondent No. 1 had learnt that Mr. White, Queen's Counsel, had been engaged by the appellant's firm in the said suits on behalf of the said West German client before the Calcutta High Court on a fee of Rs. 17,000 per day. The Income-tax Officer drewattention of the appellant's firm to provisions of Section 195(2) of the Income-tax Act, 1961, which required that the tax should be deducted at source on payments made to a non-resident. By the said letter, the Income-tax Officer requested the appellant's firm to let him know whether the firm had made any payment to the said Blanco White and the tax had been deducted at source. The appellant's firm thereafter by its letter dated 24th February, 1970, informed the respondent No. 1, the Income-tax Officer, that it did not brief Mr. Blanco White nor did it know on what fees, if any, Mr. Blanco White had been engaged. The firm by the said letter pointed out that it did not pay or incur any liability to pay any fee to the said Blanco White. In that circumstance the question of deduction of tax under Section 195 of the said Act did not arise. Thereupon, the Income-tax Officer by his letter dated 27th February, 1970, informed the firm that in view of the alleged connection of the firm with Mr. Blanco White, the Income-tax Officer proposed to treat the firm as an agent of Mr. Blanco White under Section 163(1) of the Income-tax Act. 1961. On the llth March, 1970, the appellant's firm by a letter informed the Income-tax Officer that that the firm had engaged Mr. Blanco White was entirely incorrect. It was pointed out in the said letter that Mr. Blanco White being a barrister did not carry on any business. Even if a profession was a business, Mr. Blanco White appearing before a court in India in particular suits when briefed by London solicitors in London could not constitute a connection in India. It was also pointed out in the said letter that Mr. Blanco White's fees were honorarium and he had no legal right to recover them. Therefore, no income was accrued or arose to Mr. Blanco White. In these circumstances, the firm requested the Income-tax Officer to drop the proposal to treat the firm as an agent of Mr. Blanco White. By a letter dated 25th March, 1970, the Income-tax Officer, the respondent No. 1, informed the appellant's firm that he was unable to drop the proposal to treat the appellant's firm as an agent of the non-resident, Mr. Blanco White, on the basis of the contentions made by the appellant's firm. The firm might make further submissions on the 18th of April, 1970, when the matter would he heard. Being aggrieved by the said communication of the Income-tax Officer to treat the firm of M/s. Orr, Dignam & Co. as an agent of Mr. Blanco White under Section 161(1) of the Income-tax Act, 1961, the appellants moved an application under Article 226 of the Constitution in this court and obtained a rule nisi. The said rule was finally heard and discharged by Sabyasachi Mukharji J. on 12th of May, 1971, upon the view that the said application was premature and the appellant had an alternative remedy under the Income-tax Act. The learned trial judge further found that having regard to the nature of the question involved in the instant case, the Income-tax Officer had jurisdiction to decide the matter. Theappellants being aggrieved by the said judgment and order, dated 12th of May, 1971, preferred the present appeal.

3. Mr. Ginwalla, appearing on behalf of the appellants, contends that the appellants had challenged the existence of the conditions on the satisfaction of which the appellant's firm could be treated as an agent of Mr. Blanco White under Sections 160 and 163(1) of the Income-tax Act, 1961. The learned trial judge should have decided the appellant's case on merits as the questions raised went to the very root of the matter and affected the jurisdiction of the Income-tax Officer to treat the appellant's firm as an agent of Mr. Blanco White under Section 163(1) of the said Act.

4. Mr. Ginwalla further contends that Sections 160 and 161 of the Act impose a vicarious liability on the agent to be assessed in respect of the non-resident's income but the agent is chargeable as a ' representative assessee ' only in respect of income specified under Section 9(l)(i) of the Act, viz., income accruing or arising, whether directly or indirectly, through or from any business connection in India. In the instant case there was no business connection between the appellant's firm and Mr, Blanco White and no income accrued or arose to Mr. Blanco White through such business connection and, as such, the conditions precedent for treating the appellant's firm as agent tinder Sections 160 and 163(1) of the Act were not fulfilled.

5. It is well-settled that the meaning of the expression. ' business connection ' is riot restricted by the definition of ' business ' contained in Section 2(13) of the Act because that definition is enumerative and not exhaustive.

' Business connection ' has not been defined in the Act. It is difficult to get a definition both exclusive and inclusive which will meet with every mode or method of business dealing. Business connection is not equivalent to carrying on a business. The appellants carry on the profession ot solicitors in partnership with one another. Under the Indian Partnership Act ' business ' includes every trade, occupation or profession. The matter in which one has a right of interference, in our view, comes within the ambit of the expression ' business connection '.

6. It is not disputed that the appellant's firm acted as solicitors of the West German company in the two patent suits before the Original Side of the Calcutta High Court for which Mr. Blanco White appeared, and they were the instructing attorney of the said Mr. Blanco White. Under Section 32 of the Advocates Act, 1961, any court, authority or person may permit any person not enrolled as an advocate under the said Act to appear before it or him in any particular case. Under Sub-section (3) of Section 34 of the said Advocates Act, 1961, any rule made by a High Court under its Letters Patent shall continue to remain in force so far as consistent with the provisions of the said Act. Under Chapter 1, Rule 38 of the Rules ofthe High Court, Calcutta, Original Side (5th edition), an advocate of any other High Court in the Union of India may, with the permission of the Chief Justice, appear and plead for the parties in matters arising in or out of the original jurisdiction, or in or out of the appeals therefrom, provided he is a member of the Bar in England or of Northern Ireland, or a member of the Faculty of Advocates in Scotland, or a person entitled to appear and plead on the Original Side of the High Court of Judicature at Bombay; and that, he is properly instructed by an attorney. The first part of Rule 38, Chapter 1 of the Rules of the High Court at Calcutta, Original Side, stands impliedly repealed as that part of the rule is inconsistent with or repugnant to Section 32 of the Advocates Act, 1961. Therefore, it follows that although Mr. Blanco White is not an advocate of any other High Court in the Union of India, he can appear in any court in India by virtue of Section 32 of the Advocates Act but his appearance on the Original Side of the Calcutta High Court is restricted and regulated by the second part of Rule 38, Chapter 1 of the Original Side Rules of the Calcutta High Court that he cannot appear unless he is instructed by an attorney, as that part of the rule is not inconsistent with the Advocates Act, 1961.

7. It has been disclosed by the appellants in their petition that there was correspondence between the appellant's firm and the London solicitors regarding the evidence to be adduced in those suits, the question of law arising therein and fixing of dates of hearing at which the said Mr. Blanco White could attend. Taking into account the surrounding circumstances, and particularly the relation between the solicitors and a counsel, an agency can very well be established between the appellant's firm and the nonresident British counsel, Mr. Blanco White, and, therefore, we hold that there was a ' business connection ' between them.

8. It is next contended by Mr. Ginwalla that assuming there was a business connection, a mere casual connection, a collection which is not continued, would not be a business connection as contemplated under Section 9(1)(i) of the Act. There must be an element of continuity in the agency. An isolated transaction through an agent or even a connection for a short period, would not necessarily constitute business connection. In support of his contentions, Mr. Ginwalla referred to a decision of the Supreme Court in Commissioner of Income-tax v. R.D. Aggarwal and Co., : [1965]56ITR20(SC) .

9. It appears from the facts so far as disclosed that from 31st May, 1965, up to 16th February, 1970, there was business connection, directly or indirectly, through correspondence between the appellant's firm and the non-resident British counsel, Mr. Blanco White. In Aggarwal & Co.'s case, the Supreme Court observed that a Gtray or an isolated transaction is normally not to be regarded as business connection. It is true that, in the present case, the transaction was one but every case is to be decided upon its own facts. Due to the peculiar nature of the transaction, namely, conducting a case before a court of law, we are of opinion that the instant case is an exception to the normal rule. The entire transaction in the present case was one but it was the outcome of the continuity of the agency which was spread over for a period of more than six years. So, it cannot be said that there was no element of continuity and the transaction was a stray or an isolated one.

10. Mr. Ginwalla next contends that the appellants could not be treated as an agent with respect to the income which accrues or arises, directly or indirectly, through or from any business connection in India. In order that income can be said to have accrued or earned by the assessee, Mr. Ginwalla submits, it is not only necessary that the assessee must have contributed to its accruing by rendering services or otherwise but he must have created a debt in his favour. A debt must have come into existence if the assessee acquires a right to receive the income, and the income can be said to have accrued to him. Unless and until his contribution is effective in bringing into existence a debt or a right to receive the payment, it cannot be said that any income has accrued to him. A barrister's fees. Mr. Ginwalla submits, are honorarium. He has no right to receive them. He cannot sue his client for his fees for professional services. Mr. Blanco White has got no right to receive his fees ; no debt was created, as such no income has accrued or arose in the instant case. In support of his contentions Mr. Ginwalla referred to the English decisions, Rondel v. Worsley, [1969] 1 A.C. 191; [1967] 3 All E.R. 993 (H.L.) and Queen v. Joseph Doutre, [1884] 9 App. Cas: 745 (P.C.).and a decision of the Supreme Court in E.D. Sassoon & Co. Ltd. v. Commissioner of Income-tax, : [1954]26ITR27(SC) .

11. In Sassoon & Co.'s case the Supreme Court observed that if the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained.

12. In Rondel v. Worsley, an action of negligence was brought by a client against his counsel. It was held that an action did not lie, the immunity of counsel from being sued for professional negligence in the conduct of a case, criminal or civil, is based on public policy, not on his contractual incapacity to sue for fees, and it is in the public interest that the immunity should be retained. It was observed in that case by Lord Morris that it has for long been considered to be settled in law that a barrister may not and does not enter into any contract which enables him to sue for his fees.

13. In Queen v. Joseph Doutre, a member of the Bar of Lower Canada, Qubec, was retained by the Government as one of their counsel,. before theFishery Commission sitting in Nova Scotia. The counsel was paid a certain amount of money but he claimed more on the ground that although his fees had been settled he had worked enough to deserve more remuneration than he had been paid. The defence took the plea that although by the law of Quebec, the plaintiff was entitled to succeed in his claim, but by the law of Nova Scotia where the counsel pleaded the case, he was not entitled to bring his suit and, therefore, the suit was not maintainable. The Privy Council pointed out that the question of remuneration was to be settled by the rule prevailing at the place where the counsel ordinarily practises.

14. A barrister of England has got no right to appear and plead in any court in India; he may, however, be permitted to appear in a particular case under the provisions of Section 32 of the Advocates Act, 1961, as a person not enrolled as an advocate under the Advocates Act, 1961. The rule of English law which incapacitates a barrister from entering into E contract of hiring for professional services has got no application in India. The rule of English law or tradition cannot override the general law of the land. Therefore, we are unable to accept the contentions of Mr. Ginwalla that the income did not accrue or arise to Mr. Blanco White as he had got no right to receive his fees and no debt was created.

15. Mr. Ginwalla, lastly, contends that the learned trial judge was wrong in holding that the existence of alternative remedy provided under the Income-tax A6t was an adequate and proper remedy. The principle that a court will not issue a prerogative writ does not apply where a party has come to the court with an allegation that his fundamental right had been infringed and the Income-tax Officer had no jurisdiction to treat the appellant's firm as an agent of Mr. Blanco White under Sections 161 and 163(1) of the Income-tax Act, 1961. The conditions precedent for the assumption of jurisdiction under Section 163(1) of the Act were not satisfied and the appellants came to the court at the earliest opportunity.

16. It is true that the alternative remedy is not a bar in cases where there have been allegations of infringement of fundamental right and/or illegal exercise of jurisdiction or assumption of jurisdiction by an authority not vested under the statute. In the instant case, the learned trial judge was of opinion that the Income-tax Officer had jurisdiction to decide. We find no reasons to differ from that view. That being so, the question of alternative remedy comes in, and where there is an alternative provision for appeal under the Act, it is inappropriate to interfere. It appears that in paragraph 22 of the petition under Article 226 of the Constitution, it is stated that the appellant's personal right and/or property and/or fundamental right including rights under Articles 19(1)(f), (g) and 31 of the Constitution have been injured by the said pretended proceeding. It does not appear from the judgment of the learned trial judge that violation ofthe appellant's fundamental right was canvassed before him. In the memorandum of appeal also, no ground has been taken. Mr. Ginwalla also did not argue before us how the appellant's fundamental right had been infringed. So, in our view, there is no substance in the contention of Mr. Ginwalla that the alternative remedy provided in the statute is inadequate.

17. In the result, this appeal fails and it is dismissed, but there will be no order for costs.

Amaresh Chandra Roy, J.

18. I agree.


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