TaxTMI 
TaxTMI 
2024 (4) TMI 357
X X X X Extracts X X X X
X X X X Extracts X X X X
....uses 41(5) and 56(1) of the Dock Workers (Regulation of Employment) Scheme, 1970, framed under the Dock Workers (Regulation of Employment) Act, 1948, the provisions of Section 194C of the Income Tax Act, 1961 are attracted? ii) Whether in the facts and circumstances of the instant case the Tribunal was right in holding that the relief granted to the appellant by the Commissioner of Income Tax (Appeals) was devoid of legally sustainable merits? Facts 3. Briefly stated, facts of the present case are that the appellant assessee is a registered employer under the Dock Workers (Regulation of Employment) Act, 1948 (hereinafter referred to as 'the Act 1948') read with the provisions of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 (hereinafter referred to as 'the Regulation Scheme 1970'). The appellant is engaged in the business of stevedoring and container freight services. In order to regulate the employment of dock workers as well as the dock workers registered employer, the aforesaid Act 1948 and the Regulation Scheme 1970 have been enacted. During the assessment years in question i.e. assessment year 2005-07 and assessment year 2007-08, the appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Learned Counsel for the appellant/assessee has referred to and carried us to various provisions of the Act 1948 and the Regulation Scheme 1970 and the provisions of Section 194C of the Act 1961. He also referred to the law laid down by Hon'ble Supreme Court in Vizagapatnam Dock Labour Board Vs. Stevadores Association reported at (1969) 2 SCC 801 (paras 19 to 24), a judgment of this Court in Calcutta Dock Labour Board Vs. Payment of Wages Authority, reported at 1981-82 (86) CWN 113 and a judgment of the Hon'ble Supreme Court in Tarseem Singh Vs. Sukhminder Singh JT, reported at (1998) 3 SCC 471 (para 12). He also placed before us a judgment of Hon'ble Supreme Court in the case of Associated Cement Company Ltd. Vs. Commissioner of Income Tax & Anr. 1993 (201) ITR 435 (SC) and contended that this judgment has no application to the facts of the present case. He also carried us to the order passed by the CIT(A) and reiterated the findings recorded by the CIT(A) as a part of his submission. He concluded his argument by submitting that there is a contract between the appellant/assessee and the dock workers to whom the appellant employed and the role of the Board is to regulate the dock ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ovides as under : 2.(b) "Dock worker" means a person employed or to be employed in, or in the vicinity of, any port on work in connection with the loading, unloading, movement or storage of cargoes, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port: (c)"employer", in relation to a dock workers, means the person by whom he is employed or to be employed as aforesaid: (d) Government" means. in relation to any major port, the Central Government and, in relation to any other port, the State Government; (e) "scheme" means a scheme made under this Act. 3. Scheme for ensuring regular employment of workers-(1) provision may be made by a scheme lor the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a port. (2) In particular, a scheme may provide (a) for the application of the scheme to such classes of dock workers and employers as may be specified therein: (b) for defining the obligations of dock workers and employe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....times. Explanation:- For the removal of doubts it is hereby declared that no act or omission on the part of any person, before the commencement of this Act shall be punishable as an offence which would not have been so punishable, If this Act had not come into force. (g) for the training and welfare of dock workers. In so far as satisfactory provision therefore does not exist apart from the scheme: (gg) for welfare of the officers and other staff of the board; (h) for health and safety measures in places where dock worker are employed. In so far as satisfactory provision therefore does not exist apart from the scheme: (i) for the manner in which, and the persons by whom, the cost of operating the scheme is to be defrayed: (j) for constituting 14 the authority to be responsible for the administration of the scheme: (k) for such incidental and supplementary matters as may be necessary or expedient for the purposes of the scheme. (3) A scheme may further provide that a contravention of any provision thereof shall be punishable with Imprisonment for such term as may be specified but in no case exceeding three month....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r registered employers. 15. The words 'dock employer' and 'registered employer' both have been defined under clause 3(g) and (q) of the Regulation Scheme 1970 as under : (g) "dock employer" means the person by whom a dock worker is employed or is to be employed. ... (q) "registered employer" means an employer whose name is, for the time being entered in the employers' register" 16. Clause 17 of the Regulation Scheme 1970 provides for maintenance of employers register and workers register. It is specifically provides that persons who have been licensed to function as stevedores by the competent authority of Calcutta Port Trust shall be deemed to have been registered under the scheme during the currency of the license. Clause 18 provides for classification of workers in registers. Clause 19 provides for fixation of number of workers on the register. Clause 20 provides for registration of the existing and new workers on payment of fees and subject to certain conditions. Clause 21 provides for age of retirement of 58 years of any worker. Clause 23 provides for medical examination of workers. Clause 25 provides that registration fee of Rs. 2 shall be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of Provident Fund loan and interest on Provident Fund loan within 15 days from the date of each recovery. (6) A registered employer shall keep such records as the Board may require, and shall produce to the Board or to such persons as may be designated by the Board upon reasonable notice all such records and any other documents of any kind relating to registered dock workers and to the work upon which they have been employed and furnish such information relating thereto as may be set out in any notice or directions issued by or on behalf of the Board. (7) Every registered employer shall maintain such gears, supervisory staff and other personnel and carry out such gears, supervisory staff and other personnel and carry out such minimum business per annum as may be specified in the licence for stevedoring to be issued by the Port authorities. (8) A registered employer is permitted to use registered workers for the descriptions of stevedoring work specified in the Scheme only under a direct stevedoring appointment with the Shipowners, Shipping Companies, Steamer Agents, Charters of vessels, Shippers, Consignees or Masters of ships. The Board may at any t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n implied condition of the contract between a registered dock worker in the categories in Schedule-I and a registered employer that the rates of wages, allowances and overtime, hours of work, rest intervals, holidays and pay in respect thereof and other conditions of service shall be such as may be prescribed by the Board for each category of workers subject to the provisions of Sub-Clauses (2) to (6). (2) The Board shall accept and implement the provisions in Schedule VI or any other Scheme that may hereafter be framed and approved by the Central Government. (3) With regard to future Scheme, the Board shall appoint a Committee consisting of representatives of registered employers, Shipping Companies, workers and the Port authority and a nominee of the Central Government to determine the norms for output in respect of cargoes of different kinds, and/or Lines and/ or Zones. If the Committee is not able to prescribe agreed norms within a period of two months of having been asked to do so, the Chairman of the Board may determine such norms and submit them to the Central Government for approval. These norms shall be adopted as standard output required of workers. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overnment. (4) A registered employer shall on-demand make a payment to the Board by way of deposit, or provide such other security for the due payment of the amount referred to in sub-clause (1), as the Board may consider necessary. (5) The Administrative Body shall furnish, from time to time, to the Board such statistics and other information as may reasonably be required in connection with the operation and financing of the Scheme. (6) If a registered employer fails to make the payment due from him under sub-clause (1) or under item (iii) of sub-clause (5) of Clause 41 or any other amount due and payable to the Board in any other capacity or account within the time prescribed by the Administrative Body, the Admn. Body shall serve a notice on the employer to the effect that unless he pays his dues within three days from the date of receipt of the notice, the supply of registered dock workers to him shall be suspended. On the expiry of the notice period, the Administrative Body shall suspend the supply of registered dock workers to a defaulting employer and charge Interest on the amounts due at such rate and from such date as the Board may decide until he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the impugned order, is patently incorrect, perverse and contrary to the provisions of the Act, 1948 and the Regulation Scheme 1970. Consequently, the finding deserves to be set aside. 18. The dock works employed by the appellant/assessee are his employees as per scheme of the Act and Regulation Scheme 1970 and it is merely allocation of workers which have been made by the administrative committee of the Board as a part of their statutory obligation under the Act, 1948 and the Regulation Scheme, 1970. The provision of section 194C of the Act 1948 is not attracted at all. 19. In the case of Vizagapatnam Dock Labour Board (supra) (para 19 to 24) the Hon'ble Supreme Court considered similar regulation scheme framed under the Act, 1948 and held that the Board is a statutory body charged with the duty of administering scheme, the object of which is to ensure grater regularity of employment for dock workers and to ensure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the dock workers. The purport of the S....