TMI Blog1992 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of 30 per cent. be allowed on account of expenses ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the assessee being an employee in Messrs. Usha Sales Corporation, deriving both salary and commission could not be assessed under section 16 of the Income-tax Act, 1961, for his commission receipt ? " The background facts as culled out from the statement of case drawn up by the Tribunal and the orders annexed thereto are to the following effect : Bijay Kishore Kapoor ( hereinafter referred to as " the assessee was working as the shop in charge of a concern named Nalanda Sales Corporation ( for short, " the employee " ). In addition to a sum of Rs. 175 per month which he recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that the income was assessable as income from other sources, and the 30 per cent. deduction allowed by the Appellate Assistant Commissioner was in order. On being moved by the Revenue, the aforesaid two questions have been referred to this court for opinion. In spite of notice, the assessee has not entered appearance. According to Mr. A. K. Ray, learned counsel for the Revenue, the approach of the Appellate Assistant Commissioner and the Tribunal was erroneous. The said authorities have overlooked the basic features of the case. The terms of engagement of the assessee were before the Income-tax Officer who copiously referred to various terms in his orders of assessment. These were not considered by the appellate authorities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee who was described as the manager was getting a monthly salary of Rs. 175 and was required to look after the affairs of the company on wholetime basis. This itself is an indication of the fact that what was being paid to the assessee as commission formed a part of the emoluments and, therefore, the Assessing Officer had rightly treated the amount as a part of the salary. The finding of the Tribunal that there is no element of salary involved in earning the commission appears to be contrary to the facts on record. The terms of engagement clearly reflect the relationship between the employer and the assessee. One relevant aspect has also been overlooked by the Appellate Assistant Commissioner and the Tribunal. The employer itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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