JUDGMENT
Suhas Chandra Sen, J.
1. The Tribunal has referred the following question of law to this court under Section 256(1) of the Income-tax Act, 1961 (“the Act”) :
“Whether, on the facts and in the circumstances of the case and on a correct interpretation of the agreement dated July 14, 1976, between the assessee and the Ali Akbar College of Music, the Tribunal was justified in holding that the remuneration received by the assessee was assessable not as salary income but as income from profession ?”
2. The assessee is an individual deriving income from profession as a musician. He has also income from house property. During the assessment year under consideration (assessment year 1977-78, corresponding to accounting year ending on March 31, 1977), the assessee received a sum of Rs. 72,925 in foreign currency as remuneration for services rendered to the Ali Akbar College of Music in America under an agreement dated July 10, 1976, entered into by and between the assessee and the Ali Akbar College of Music, America. The said agreement was for only one year. The assessee claimed that this amount should be treated as professional income and the expenses incurred for earning this income should be allowed. The Income-tax Officer did not agree with the contention of the assessee and held that the assessee was an employee of the Ali Akbar College of Music. Accordingly, the income should come under the head “Salaries”. On appeal, the Appellate Assistant Commissioner held that the amount was liable to be taxed under Section 5(1)(c) of the Act, and the provisions of Section 6(1)(ii) (sic) of the Act could not be invoked for treating the said income as income under the head “Salaries”. The Appellate Assistant Commissioner directed the Income-tax Officer to allow the incidental expenses connected with the remuneration earned.
3. On further appeal, the Tribunal examined the agreement and came to the conclusion that the engagement of the assessee was essentially in the nature of a professional engagement. The agreement did not establish any relationship of master and servant between the college and the assessee and the assessee was a professional man and the agreement was for a short period of one year only. Reliance was also placed by the Tribunal in the case of CIT v. Mrs. Durga Khote [1952] 21 ITR 22 (Bom), and the Tribunal came to the conclusion that the assessee’s income should be treated as professional income and the deduction claimed by the assessee was allowable.
4. The Tribunal also pointed out one more aspect of the case which had escaped the attention of the lower authorities. The Tribunal pointed out that Section 80R of the Act was enacted with effect from April 1, 1968, and was applicable to the assessment year under consideration. Section 80R allows a deduction of half of the total remuneration received by an individual who is a citizen of India where the remuneration earned outside is received in India from any university or other educational institution as a teacher. That section was applicable to the assessee. This point had not been considered by the authorities below and the assessee had not come up in cross-objection or cross-appeal and, thus, the Tribunal felt that it was unable to grant a higher relief than what was granted by the Appellate Assistant Commissioner. The Tribunal, however, held that if Section 80R was applied, then the assessee would have been entitled to at least the relief granted by the Appellate Assistant Commissioner.
5. The question has two aspects, of which the first aspect was considered by the Tribunal and the second aspect has not been argued at all. Moreover, having regard to the fact that the assessee was a professional man, engaged in professional activities abroad for only one year and had incidentally rendered services to the Ali Akbar College of Music, it cannot be said that there was a master and servant relationship.
6. The question is, therefore, answered in the affirmative and in favour of the assessee.
7. There will be no order as to costs.
Bhagabati Prasad Banerjee, J. 8. I agree.