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Suresh Kumar Hooda Versus The Commissioner of Income Tax, Rohtak and another

2016 (1) TMI 541 - PUNJAB AND HARYANA HIGH COURT

Service of an independent contractor - whether would be taxable as salary contrary to the contract of service dated 9th February, 2004 and 14th November, 2005? - Held that:- In case, it is 'contract for service', the income of the doctors would fall under the head 'income from business or profession' whereas under 'contract of service, it would partake the character of salary which is dependent upon master-servant relationship. It is always a vexed question to determine whether employer-employee .....

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estion whether the relationship between the parties is one of the employer and employee is a pure question of fact. The control test and the organization test are not the only factors whereas several other factors viz. who is the appointing authority; who is pay master; who can dismiss; how long alternative service lasts; the extent of control and supervision; the nature of the job e.g. Whether it is professional or skilled work; nature of establishment and the right to reject, are also required .....

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peal has been preferred by the assessee under Section 260A of the Income Tax Act, 1961 (in short the Act ) against the order dated 30.9.2010 (Annexure A-9) passed by the Income Tax Appellate Tribunal, Delhi Bench G , New Delhi (hereinafter referred to as the Tribunal ) in ITA No. 3897/Delhi/2009 for the assessment year 2006-07. The appeal was admitted by this Court vide order dated 24.7.2012 for determination of the following substantial question of law:- Whether in the facts and circumstances o .....

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e A-1) and dated 14.11.2005 (Annexure A-2). Vide letter dated 14.2.2006 (Annexure A-3), the appellant was again re-engaged by the said company. He was also engaged by Dolphin Offshore Enterprises vide letter dated 9.2.2004 (Annexure A-4) and the said contract was further extended vide letter dated 6.6.2004 (Annexure A-5). The TDS certificate, Annexure A-6, was issued to the appellant by the said company after deducting the tax at source under Section 194J of the Act. The appellant filed his retu .....

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peal before the Commissioner of Income Tax (Appeals) [for brevity the CIT(A) ]. The CIT(A) vide order dated 29.1.2009 (Annexure A-8) affirmed the order of the Assessing Officer holding that the said receipts were taxable under Section 17 of the Act as salary. Still dissatisfied, the assessee filed an appeal before the Tribunal who vide order dated 30.9.2010 (Annexure A-9) upheld the order of the CIT(A) and dismissed the appeal. Hence, the present appeal by the assessee. 4. Learned counsel for th .....

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of 2013 decided on 26.8.2015. It was urged that the Tribunal who is the final fact finding authority has not recorded any such clear finding of fact regarding 'contract of service' or 'contract for service' between the appellantassessee and SEAMEC Ltd. and DOE Ltd. based on guiding principles enunciated in M/s Ivy Health Life Services Pvt. Ltd.'s case (supra). It was, thus, contended that in such circumstances it would be just and appropriate that the matter is remitted back .....

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e agreement between the assessee and the concerned doctors was a 'contract for service' or a 'contract of service'. In case, it is 'contract for service', the income of the doctors would fall under the head 'income from business or profession' whereas under 'contract of service, it would partake the character of salary which is dependent upon masterservant relationship. It is always a vexed question to determine whether employer-employee relationship exists be .....

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ies is one of the employer and employee is a pure question of fact. The control test and the organization test are not the only factors whereas several other factors viz. who is the appointing authority; who is pay master; who can dismiss; how long alternative service lasts; the extent of control and supervision; the nature of the job e.g. Whether it is professional or skilled work; nature of establishment and the right to reject, are also required to be scanned before arriving at the conclusion .....

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