2016 (1) TMI 541

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....come 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 of the case, the Income Tax Appellate Tribunal has fallen in error in holding that the service of an independent contractor would be taxable as salary contrary to the contract of service dated 9th February, 2004 and 14th November, 2005? 3. The facts, in short, necessary for adjudication of the instant appeal as narrated therein may be noticed. The appellant was engaged as a contractor on contractual basis by Sou....

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....he appeal. Hence, the present appeal by the assessee. 4. Learned counsel for the appellant-assessee submitted that whether the agreement between the assessee and South East Asia Marin Engineering and construction Ltd. (SEAMEC Ltd.) and M/s Dolphin Offshore Enterprise Ltd. (DOE Ltd.) was a 'contract for service' or a 'contract of service' would be a question of fact dependent upon appreciation of various factors enunciated by this Court in The Commissioner of Income Tax (TDS), Chandigarh v. M/s Ivy Health Life Services Pvt. Ltd., Mohali, Punjab, ITA No. 142 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 'cont....

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.... a given eventuality, it would be characterized as employer-employee relationship. Such relationship depends upon several factors taken together. Even the Apex Court in Workmen of Nilgiri Coop. Market Society Limited v. State of Tamil Nadu and others, 2004(2) RSJ 466 (SC) observed that the question 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....