TMI Blog1998 (6) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 262, dated February 1, 1955. It is stated that the Advocate-General is the principal law officer and legal adviser to the Government and his appointment is made under article 165 of the Constitution of India to hold the office during the pleasure of the Governor. The Advocate-General is debarred from advising or holding briefs against the Government, defending accused persons and giving advice to private parties in which he is likely to be called on to advise the Government. The assessee was paid a monthly salary of Rs. 1,500 and he was also paid fees for his appearance on behalf of the Government in various courts of law. The question in the tax case reference pertains to the head of income under which the monthly salary is to be tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n carried on by him. The Tribunal held that the amount paid as "salary" should be treated as salary for the purpose of assessment under section 16 of the Act. The Tribunal also held that the salaries paid to the Judges, Accountant-General, Governors, Vice-President of India, who held constitutional posts, have been assessed under the head "Salary" only and there is no reason to depart from the accepted assessment of income of the Advocate-General as salary in the case of remuneration paid for holding the post. The Tribunal, in this view of the matter, dismissed the appeal preferred by the Revenue. The Revenue has challenged the order of the Appellate Tribunal and the Tribunal has stated a case and referred the following common question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force." According to learned counsel for the Revenue, the Advocate-General is not a Government servant. We agree with the same. The Supreme Court in the case of Joginder Singh Wasu v. State of Punjab [1994] 1 SCC 184 examined the relationship between the Advocate-General and the State and held that the office of the Advocate-General is an exalted one and he is the supreme law officer of the State and is treated on par with the Minister. In so far as the relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relationship and he is not holding the post under the State. The amount was paid only as a retainer fee by the State Government to retain the services of the Advocate-General. The assessee was not given the post for any particular service, but the amount was paid only for the services to be rendered as a professional advocate. The assessee had not, at any point of his professional career, exchanged his profession for service and he continues to be a professional person. He received the salary in his capacity as a professional person and it was properly assessed by the Income-tax Officer under the head "Profession". It cannot be assumed and it is unthinkable that the assessee had changed his hat of a professional advocate and had the hat of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyer and employee between him and the person who paid him the remuneration. We are of the opinion that the same principle would equally apply in the case of the receipt of the retainer fees by the assessee. The fact that the amount was paid for holding the post is an immaterial consideration when the assessee received the amount as a person carrying on the profession of an advocate. The receipt is purely a professional receipt. The view of the Appellate Tribunal that the retainer fee received by the assessee should be taxed under the head "Salary" and not under the head "Profits and gains of business or profession" is not sustainable in law. We are of the opinion, it should be and was rightly assessed under the head "Profits and gains of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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