Ram Pershad Vs. Commissioner of
Income-Tax, New Delhi  INSC 189 (24 August 1972)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
KHANNA, HANS RAJ
CITATION: 1973 AIR 637 1973 SCR (3) 985 1972
SCC (2) 696
Income tar Act (11 of 1922) s. 7-Commission
to Managing director of Company-If salary.
Master and Servant or agency--Tests for.
The assessee was a managing director of a
company. Article 139 of the articles of association of the company enjoins that
notwithstanding anything contained in the articles the managing director is
expressly allowed generally to work for and contract with the company and
specifically to do the work of an agent and manager and also to do other work
for the company on such terms and conditions and on such remuneration as may
from time to time be agreed upon between him and the directors of the company.
Article 142 provides that the managing director shall work for the execution of
the decisions that may be arrived at by the Board of from time to time and shall
be empowered to do all that may be necessary in the execution of the decision
of the management of the company and shall do all things usually necessary or
desirable in the management of affairs of the company or carrying out its
objects. Several clauses of article 140 specifically empower the Board of
Directors to exercise control over the managing director. Under the terms of
tile agreement entered into between the assessee and the company the managing
director was appointed for 20 years but he could be removed within that period
if he did not discharge his work diligently, or, if he was found not to be
acting in the interest of the company. Under the agreement, in addition to
monthly salary, car allowance, free board and lodging he was also to receive 10%
of the gross profits of the company as commission. For the assessment year
1956-57, the assessee gave up the amount representing the 10% of gross profits,
because, the company would not be making net profits if the stipulated
commission was paid to him, And, claimed that the amount so given up was not
liable to be included in hi,. total income. The Income-tax Officer, the
Appellate Assistant Commissioner, The Tribunal and the High Court, on
reference, held that the amount was taxable as 'salary' under s. 7 of the
Indian Income-tax Act. 1922, which includes commission.
Dismissing the appeal to this Court,
HELD : The assessee had to exercise his
powers under the agreement within the terms and limitations prescribed under
the articles of association and subject to the control and supervision of the
directors, This is indicative of his being employed as a servant of the
company, and therefore, the remuneration payable to him was salary within the
meaning of section 7. [995G-H; 996A-B] (a) The nature of the particular
business and the nature of the duties of the employee should be considered in
each case in order to arrive at a conclusion as to whether the person employed
is a servant or an agent, and, it is not possible to lay down any precise rule
of law to distinguish one kind of employment from the other. [989DF] (b) A
managing director has the dual capacity of a director as well as an employee,
and whether he is the one or the other depends upon 986 the articles of
association and, the terms of his employment. Anderson v. James Sutherland
(Peter head) Limited,  S.C. 203., 218, referred to, [989G; 990B]
(c)Whether a person employed by a company is a servant or an agent is not
solely dependent on tile extent of supervision and control exercised on him.
The control which the company exercises over the assessee need not necessarily
be one which tells him what to do from day to day. Nor does supervision imply
that it should be a continuous case of the power to oversee or superintend the
work to be done.
[993F-F; 995D-F] (d)In the present case, a
perusal of the articles and terms and conditions of the agreement definitely
indicate that the assessee was appointed to manage, the business of the company
in terms of the articles of association and within the powers prescribed
therein. The control and supervision "exercised by the company is
exercisable in terms of the articles of association by the Board of Directors
and the company in its general meeting. [994G-H;
995G-F] (e)Under s. 17(2) of the Indian
Companies Act, 1913, regulation no. 71 of table A, which enjoins that the
business of the company shall be managed by the Directors is deemed to be
contained in the articles of association of the company in identical terms or.
to the same effect. Since the Board of Directors are to manage the business of
the company they have every right to control and supervise the assessee's work
whenever they deem it necessary. As a managing director, the appellant function
also as a member of the Board of Directors whose collective decision he has to
carry out in terms of the articles of association and he can do nothing which
he is not permitted to do. [995F-H] (f) The very fact that apart from his being
a managing director he, is given the liberty to work for the company as an
agent is indicative of his employment as a managing director not being that of
an agent. [995B] (g)If the company is itself carrying on the business and the
assessee is employed to manage its affairs in terms of its articles and the
agreement and if he could be dismissed or his employment can be terminated by
the company if his work is not satisfactory , it could not be said that he is
not a servant of the company. [993F-C] Morvi Industries Ltd. v. Commissioner of
Income-tax, 82 I.T.R. 835 SC. Commissioner of Income-tax v. Manmohan Das 59
I.T.R.. 699, Dharangadhra Chemical Works Ltd. v. State of Saurashtra, 
S.C.R. 152, 157, Piyare Lai Adishwar Lal v. Commr. of Income-tax, 40 I.T.R. 17,
Camar Shaff Tyabji v. Commissioner of E.P.T. Hyderabad, 39 I.T.R. 611 and
Lakshminarayan Ram Gopal v. Govt. of Hyderabad, 23 I.T.R 449.referred to.
CIVIL APPELLATE JURISDICTION. C. A. No. 1946
Appeal by special leave from the judgment and
ordered dated September 29,1967 of the Delhi High Court in 1. T. Reference No.
46-D of 1962.
A. K. Sen, H. K. Puri and S. K. Dhingra, for
L. N. Sinha Solicitor General of India, B. D.
Sharma and R. N. Sachthey for the respondent.
987 Tile Judgment of the Court was delivered
by Jaganmohan Reddy, J. The assessee and his wife owned a large number of
shares in a private limited company engaged in the business of running hotels.
By virtue of Art. 109 of the Articles of Association of the said company, the
assessed became the first Managing Direction on terms conditions agreed to and
embodied in an agreement dated November 20,1955 between himself and the
company. Under the said agreement, the assessee was to receive Rs. 2,000/per
month, a fixed sum of Rs. 500/p.m. as car allowance, 10 per cent of gross
profits of the company and he and his wife were entitled to free board and
lodging in the hotel. For the assessment year 1956-57 for which the accounting
year is the year ending 30th September 1955, the assesses was assessed in
respect of Rs. 53,913/payable to him as 10% of the gross profits of the company
which he gave up soon after the accounts were finalised but before they were
passed by the general meeting of the shareholders. The above amount was given
up by him because the company would not be making net profits if the stipulated
commission was paid to him.
The assessee claimed that the amount given up
by him was not liable to be included in his total income because the amount had
not accrued to him at all, at ,my rate, in the accounting year ended 31st March
1956 and that even assuming that it had accrued in the account year ended 31st
March 1956, it is not taxable under s. 7 or s. 10 of the Indian Income-tax Act,
1922 (hereinafter called the 'Act'). The Income-tax Officer, the Appellate
Assistant Commissioner, the Tribunal and on a reference under s. 66(1) the High
Court have all held that the 10% commission on gross profits amounting to Rs.
53,913/was taxable as 'salary' under s. 7 of the Act and that the income had
accrued to the assessee during the previous year. Against the judgment of the
High Court, this appeal is by special leave.
The questions of law which were referred to
the High Court under s. 66(1) of the Act are as follows :
1. Whether the sum of Rs. 53,913/was a
revenue receipt of the assessee of the previous year ?
2. Whether the amount is chargeable under s.
7 or s. 10 of the Income-tax Act ?
3. If the amount is chargeable under section
10, is the assessee entitled to a deduction of. Rs. 53,913/tinder s.10(1) or s.
10(2) The High Court answered the first question in the affirmative and in
favour of the revenue, and on the second question it was of 988 the view that
the amount payable as commission was chargeable under S. 7 as salary and not
under S. 10 of the Act. On this view, it did not think it necessary to answer
the third question.
When the matter came up earlier, this Court
on November 9, 1971 considered it necessary to call for a further statement of
the case from the Tribunal on the third question on the basis of the materials
before it and having regard to the decision of Morvi Industries Ltd. v.
Commissioner of Incometax(1). The Tribunal in its supplementary statement of
case has answered the question against the assessee and in favour of the
Department in holding that the assessee is not entitled to a deduction of the,
sum of Rs. 53,913/either under s.10(1) or 10(2) of the Act.
It is not disputed that the commission
payable to him would be a revenue receipt nor is it disputed that if it is
chargeable under s. 7 no other question would arise having regard to the
finding based on the decision in Morvi Industries case (supra) that the amount
of Rs. 53,913/had accrued to the assessee in the year of account. It is
therefore necessary for us to consider whether the 10 per cent gross profits
payable to the assessee under the terms of the agreement appointing him as the
Managing Director is liable to be assessed as salary or under the head 'income
from business'. It may be mentioned that 'salary' under s.7 of the Act includes
also commission, wages, perquisites etc.
On behalf of the assessee, it was contended
that in order to assess the income as salary it must be held that there was a
relationship of master and servant between the company and the assessee. For
such a relationship to exist, it must be shown that the employee must be
subject to the supervision and control of the employer in respect of the work
that the employee has to do. Where, however, there is no such supervision or
control it will be a relationship of principal and agent or an independent
contractor. Applying these tests, it is submitted that the appointment of the
assessee as a Managing Director is not that of a servant but as an agent of the
company and accordingly the commission payable to him is income from business
and not salary. In support of this contention, reference has been made to
Halsbury's Laws of England, Bowstead on Agency and treatises on Company Law by
Palmer, Gower, Penington and Buckley.
There is no doubt that for ascertaining
whether a person is a servant or an agent, a rough and ready test is, whether,
under the terms of his employment, the employer exercises a supervisory control
in respect of the work entrusted to him.
A servant acts under the direct control and
supervision of his master. An agent, (1) 82 I.T.R.835 S.C.
989 on the other hand, in the exercise of his
work is not subject to the direct control or supervision of the principal,
though he is bound to exercise his authority in accordance with all lawful
orders and instructions which may be given to him from time, to time by his
principal. But this test is not universal in its application and does not
determine in every case, having regard to the nature of employment, that he is
a servant. A doctor may be employed as a medical officer and though no control
is exercised over him in respect of the manner he should do the work nor in
'respect of the day to day work, he is required to do, he may nonetheless be a
servant if his employment creates a relationship of master and servant. Similar
is the case of a chauffeur who is employed to drive the car for his employer.
If he is to take the employer or any other person at his request from place 'A'
to place 'B' the employer does not supervise the manner in which he drives
between those places. Such examples can be multiplied. A person who is engaged
to manage a business may be a servant or an agent according to the nature of
his service and the authority of his employment. Generally it may be possible
to say that the greater the amount of direct control over the person employed,
the stronger the conclusion in favour of his being a servant. Similarly the
greater the degree of independence the greater ,the possibility of the services
rendered being in the nature of principal and agent. It is not possible to lay
down any precise rule of law to distinguish one kind of employment from the
other. The nature of the particular business and the nature of the duties of
the employee will require to be considered in each case in order to arrive at a
conclusion as to whether the person employed is a servant or an agent. In each
case the principle for ascertainment remains the same.
Though an agent as such is not a servant, a
servant is generally for some purposes his master',; implied agent, the extent
of the agency depending upon the duties or position of the servant. It is again
true that. a director of a company is not a servant but an agent inasmuch as
the company cannot act in its own person but has only to act through directors
who qua the company have the relationship of an agent to its capacity. Managing
Director may have a dual capacity. He may both be a Director as well as
employee. It is therefore evident that in the capacity of a managing director
he may be regarded as having not only the capacity as persona of a director but
also has the persona of an employee'. or an agent depending upon the nature of
his work and the terms of his employment. Where he is so employed, the
relationship between him as the Managing Director and the Company may be
similar to a person who is employed as a servant or an agent for the term
'employed' is facile enough to cover any of these relationships. The nature of
his employment may be determined by the 990 articles of association of a
company and/or the agreement if any, under which a contractual relationship
between the Director and the company has been brought about, where under the
Director is constituted an employee of the company, if such be the ,case, his
remuneration will be assessable as salary under s. 7. In other words, whether
or not a Managing Director is a servant of the company apart from his being a
Director can only be determined by the articles of association and the terms of
his employment. A similar view has been expressed by the Scottish Court of
Session in Anderson v. James Sutherland (Peter head) Limited(1) where Lord
Normand at p.218 said :
"........ the managing director has two
functions and capacities. Qua managing director he is a party to a contract
with the company, and this contract is a contract of employment; more
specifically I am of opinion that it is a contract of service and not a
contract for service." A number of cases have been referred before us but
the conclusion in each of the decisions turned on the particular nature of
employment and the facts disclosed therein. In each of these decisions the
"context played a vital part in the conclusions arrived at." In
Commissioner of Income-tax v. Manmohan Das(2) this Court had occasion to
consider the case of employment by a bank of a treasurer for its branches,
sub-agencies and pay offices where he had to perform the duties, liabilities
and responsibilities which by custom or contract usually devolved upon a
treasurer as well as those specified in the agreement. The treasurer had to
provide the staff for the cash section of the bank;
he had power to suspend, transfer or dismiss
any member of the staff and to appoint any other person in his place. He was
responsible for all the acts of the staff so appointed which resulted in loss
or damage to the bank and was responsible for the protection of the property of
the bank and for the receipt of any bad money, or base money etc., was
requested to transmit from one place to another, under guard provided by the
bank, moneys, documents and properties of the bank. It was held that though the
office of the treasurer was created by the agreement and that he held office
under it, that was not decisive of the question whether the remuneration earned
by him was as a servant of the bank. Receipt of remuneration for holding an
office did not necessarily give rise to the relationship of master and servant
between the holder of the office and the person who paid the remuneration. It
was held that the treasurer was not a servant of the bank and the remuneration
received by him was not salary. Referring to. the observations of (1) 
S.C. 203 at 218.
(2) 59 I.T.R. 699.
991 Bhagwati, J. in Dharangadhra Chemical
Works Ltd. v. state of Saurashtra(1), Shah, J. observed (at p. 707) that the
correct method of approach would be to consider whether having regard to the
nature of the work, there was due control and supervision by the employer. In
Piyare Lal Adishwar Lal v. Commr. of Income-tax(2), Kapur, J. said (at p. 24)
"It is difficult to lay down any one
test to distinguish tile relationship of master and servant from that of an
employer and independent contractor. In many cases the test laid down is that
in the case of master and servant, the master can order or require what is to
be done and how it is to be done but in the case of an independent contractor
an employer can only say what is to be done but not how it shall be done. But
this test also does not apply to all cases, e.g. in the case of ship's master,
a chauffeur or a reporter of a newspaper.. . . . In certain cases it has been
laid down that the indicia of a contract of service are (a) the master's power
of selection of the servant; (b) the payment of wages or other remunerations;
(c) the master's right to control the method of doing the work; and (d) the master's
right to suspension or dismissal." Learned advocate for the appellant
relies on the decision of Qamar Shaffi Tyabji v. Commissioner of E.P.T.,
That was a case which turned upon the nature
of the contract entered into between the industrial trust fund and the assessee
which in turn was governed by the agreements between the company and the
trustees. Under the latter agreements, the trustees were given general conduct
and management of the business and affairs of the mills and were entitled to
appoint employees and delegate to other persons all or any of the powers etc.
under the agreement subject to the approval of the Board of Directors. By
separate agreements made at the same time the trustees were also appointed
selling agents of the mills and by two supplemental agreements they were given
power to delegate all or any of their powers to other persons on such terms and
conditions as they may think fit subject to the approval of the Board of
Directors of the company. The trustees appointed the assessee under these terms
as their delegate.
In those circumstances, it was held that the
appellant was neither a servant nor a mere sub-agent. He was an agent of the
principal for such part of the business of the agency a:, was entrusted to him
inasmuch as the trustees as agents had express authority to name another person
to act for the (1)  S.C.R. 152,157. (2) 40 I.T.R. 17.
(3) 39 I.T.R. 611.
992 principal in the business of the agency
and they named the appellant with the approval of the Board of Directors.
A similar view was taken by this Court in,
Lakshminarayan Ram Gopal v. Govt. of Hyderabad(1). Bhagwati, J. speaking for
the Court held that the assessee under the managing agency agreement having
regard to certain indicia discernible from that agreement was an agency. At p.
458 the functions of the assessee which were inconsistent with his being a
servant were specified. They were :1.The power to assign the agreement and the
rights of the appellant thereunder;
2.The right to continue in employment as the
agents of the company for a period of 30 years until the appellants of their
own will resign;
3.The remuneration by way of commission of
2-1/2 per cent of the amount of sale proceeds of the produce of the company;
and 4.The power of sub-delegation of
functions given to the agent tinder Art. 118.
All these circumstances went to establish
that the appellants were the agents of the company and not merely the servants
remunerated by wages or salary.
In Commissioner of Income-tax Bombay v.
Armstrong Smith (2) Stone, C.J. and Kania, J. had held that under the terms of
an agreement the Managing Director was a servant of the company. There they had
to consider a case where the articles of association of the company provided
that the assessee was to be the Chairman and Managing Director of the Company
until he resigned office or died or ceased to hold at least one share in the
capital of the company; that all the other directors were to be under his
control and were bound to conform to his directions in regard to the company's
business; that his remuneration was to be voted by the company at its annual
general meeting and that the sum received by him for managing the company's
business which arose from out of the, contractual relationship with the company
provided by the articles for performing the services of managing the company's
business. In these circumstances it was held that the remuneration was taxable
under s. 7 and not under s. 12 of the Act. It appears that a large number of
English cases were cited but these were not referred to.
Stone, C.J. observed (at pp. 609-610):"We
have been referred to quite a large number of English cases the effect of
which, I think, be sum(1) 25 I.T.R. 449 (2) 15 I.T.R. 606.
993 marised by saying that a director of a
company as such is not a servant of the company and that the fees he receives
are by way of gratuity, but that does not prevent a director or a managing
director from entering into a contractual relationship, with the company, so
that, quite apart from his office of director he becomes entitled to
remuneration as an employee of the company. Further that relationship may be
created either by, a service agreement or by the articles themselves. Now, in
this case there is no question of any service agreement outside the articles
and, therefore, the relationship between the company and the assessee, Mr.Smith,
depends upon the articles." (emphasis ours) In Commissionerof Income-tax
v. Nagi Reddy(1) the Madras High Court was considering the case of a Managing
Director of a film company who was also the Managing Director of another film
company on similar terms and remuneration, namely, that he was to get a monthly
remuneration of Rs.500/and in addition a commission of net profits. The
question there was, whether the remuneration received by him as Managing
Director from these two companies was income from business assessable under s.
10 of the Act. In that case a reference was made to the Bombay decision in
Commr. of I.T. v. Armstrong Smith (supra).
A detailed consideration of all the cases
cited and the passages from text books referred to before us does not assist us
in coming to the conclusion that the test for determining whether the person
employed by a company is a servant or agent is solely dependent on the extent
of supervision and control exercised on him. The real question in this case is
one of construction of the articles of association and the relevant agreement
which was entered into between the company and the assessee. If the company is
itself carrying on the business and the assessee is employed to manage its
affairs in terms of its articles and the agreement, he could be dismissed or
his employment can be terminated by the company if his work is not
satisfactory, it could hardly be said that he is not a servant of the company.
Art. 109 of the articles of association before its amendment and relevant for
the period which we are considering provided that he shall be the Managing
Director of the company for 20 years on terms and conditions embodied in the
agreement. Art. 136 states that subject to the aforesaid agreement, the general
management of the business of the company shall be in the hands of the Managing
Director of the company who shall have power and authority on behalf of the
company to do the several things specified therein which are usually necessary
and desirable for the management of (1) 51 I.T.R. 178.
4--L172Sup. CI/73 994 the affairs of the
company. Art. 137 provided that the receipts signed by the Managing Director or
on his behalf for any moneys or goods or property received in the usual course
of business of the company shall be effectual discharge on behalf of and
against the company for moneys, funds etc. It further provides that the
Managing Director shall also have power to sign cheques on behalf of the
company. Under Art. 138 he is authorised to sub delegate all or any of the
powers. Art. 139 enjoins that notwithstanding anything contained in those
articles the Managing Director is expressly allowed generally to work for and
contract with the company and specifically to do the work of agent to and
Manager of and also to do any other work for the company upon such terms and
conditions and on such remuneration as may from time to time be agreed upon
between him and the Directors of the Company. Art. 140 specifies powers in
addition to the powers conferred on him as the Managing Director. Under Art.
141 the Managing Director shall have charge and custody of all the property,
books of account, papers, documents and effects belonging to the said company
where so ever situate. Art. 142 provides that the Managing Director shall work
for the execution of the decisions that may be arrived at by the Board from
time to time and shall be empowered to do all that may be necessary in the execution
of the decisions of the management of the company and shall do all things
usual, necessary or desirable in the management of the affairs of the company
or carrying out its objects. Cl. (k) of the agreement dated 29-11-1955
stipulates :"That the said Ram Pershad shall be at liberty to resign the
said office upon giving three months' notice to the company of his desire to do
so. If the said Managing Director is found to be acting otherwise than in. the
interests of the company or is found to be not diligent to his duties as a
Managing Director, the company in General Meeting may terminate his services
before the expiry of the said period of 20 years." The other terms of the
agreement enumerate the powers and duties given to him under the articles of
A perusal of the articles and terms and
conditions of the agreement definitely indicate that the assessee was appointed
to manage the business of the company in terms of the articles of association
and within the powers prescribed therein. Reference may particularly be made to
Arts. 139 and 142 to ascertain the nature of the control imposed by the company
upon the Managing Director. Under the former the additional work which he can
do as an agent or manager of the company can be done on terms 995 and
conditions and on such remuneration as can be agreed upon between him and the
Directors of the Company and under the latter he had to execute the decisions
that may be arrived at by the Board from time to time. The very fact that apart
from his being a Managing Director he is given the liberty to work for the
company as an agent is indicative of his employment as a Managing Director not
'being that of an agent. Several of the clauses of Art. 140 as pointed out by
the High Court specifically empower the Board of Directors to exercise control
over the Managing Director, such, for instance to accept the title of the
property to be sold by the company, providing for the welfare of the employees,
the power to appoint attorneys as the Directors think fit etc. As pointed out
earlier under the terms of the agreement he can be removed within the period of
20 years for not discharging the work diligently or if he is found not to be
acting in the interest of the company as Managing Director. These terms are inconsistent
with the plea that he is an agent of the company and not a servant. The control
which the company exercises over the assessee need not necessarily be one which
tells him what to do from day to day. That would be a too narrow view of the
test to determine the character of the employment. Nor does supervision imply
that it should be a continuous exercise of the power to oversee or superintend
the work to be crone.
The control and supervision is exercised and
is exercisable in terms of the articles of association by the Board of
Directors and the company in its general meeting. As a Managing Director he
functions also as a member of the Board of Directors whose collective decisions
he has to carry out in terms of the articles of association and he can do
nothing which he is not permitted to do. Under s. 17(2) of the Indian Companies
Act 1913 Regulation No. 71 of Table A which enjoins that the business of the
company shall be managed by the directors is deemed to be continued in the
articles of association of the company in identical term or to the same effect.
Since the Board of Directors are to manage the business of the Company they
have every right to control and supervise the assessee's work whenever they
deem it necessary. Every power which is given to the Managing Director
therefore emanates from the articles of association which prescribes the limits
of the exercise of that power.
The powers of the assessee have to be
exercised within the terms and limitations 996 prescribed there under and
subject to the control and supervision of the Directors which in our view is
indicative of his being employed as a servant of the company.
We would therefore hold that the remuneration
payable to him is salary. In this view, the other questions need not be considered,
and the appeal is dismissed with costs.
V.P.S. Appeal dismissed.