COMMISSIONER OF INCOME TAX vs P. ARANGASWAMY

Babu, J.

The common question that arises for our consideration in all these tax cases is as to whether the incentive bonus and the additional conveyance

allowance paid to the Development Officers of the Life Insurance Corpn. of India (LIC) form part of their salary and liable to be assessed to tax as

salary.

This court in the case of CIT v. E.A. Rajendran (1997) 142 CTR (Mad.) 244 has held that in the absence of any notification issued by the

Central Government u/s 10(14)(i) of the Income Tax Act, 1961 ( hereinafter referred to as ''the Act'') granting exemptions, the incentive bonus and

additional conveyance allowance are liable to be assessed to tax as salary. This Court also held that such bonus and the additional allowance are

part of the salary of the employee having regard to the terms used in sections 16 and 17 of the Act.

A view similar to the one taken by this court has been taken by the Andhra Pradesh High Court in the case of K.A. Choudary Vs.

Commissioner of Income Tax and Others, , by the Rajasthan High Court in the case of CIT v. Shiv Rai Bhatia (1997) 227 ITR 7 (Raj) as also by

a Full Bench of the Karnataka High Court in the case of CIT v. M.D. Patil (1998) 229 ITR 71 (Karn) (FB).

A contrary view, however, has been taken by the Bombay High Court and the said judgment has been extracted in the decision of the Gauhati

High Court in the case of CIT v. Ram Krishna Banik (1995) 215 ITR 901. The Gauhati High Court has taken a view similar to that taken by the

Bombay High Court. The Gujarat High Court has in their elaborate judgment in CIT v. Kiranbhai H. Shelat (1998) 5 DTC 652 (Guj-HC) : (1998)

147 Taxation 32 (Guj) taken the same view as that of the Bombay and Gauhati High Courts.

Thus, there is a conflict of opinion among the High Courts as to whether the incentive bonus and additional conveyance allowance paid to the

Development Officers form part of their salary. The reasoning of the Gujarat High Court which judgment has been rendered after considering the

decisions of the Rajasthan, Karnataka and the Madras High Courts is that the word ''profit'' in section 17(1)(iv) is referable only to the amount

actually utilisable by the recipient for his own purposes and, therefore, necessarily excludes all the expenditure incurred by such recipient, even

though he is an employee and the amount is received from his employer.

There is unanimity among the High Courts on the status of the Development Officers as full time employees of the LIC and on the fact that the

amounts received by the employees from their employer form part of the salary and further that as this bonus and allowance have not been notified

u/s 10(14)(z), they are not amounts which can be regarded as exempt from the levy of Income Tax.

The materials placed before the Court by the respective counsel show that Development Officers are whole time employees of the LIC, who

are required to discharge the duties and obligations which, inter alia, include the development of the life insurance business of the corporation. The

very first duty enumerated for the Development Officer is ''to develop, to increase the production of new insurance business in the planned way as

far as may be practicable in the area that may be allotted to him from time to time''. The other duties and obligations include the duty to supervise

and to guide the activities of agents placed under the supervision of the Development Officers, to recruit new agents so as to develop agency force

and to act generally in such a way as to actives existing agents and to motivate new agents and to render certain services to the policy holders. The

Officer is also required to perform such other duties that are entrusted or assigned to him from time to time.

The remuneration payable to the agent is defined in the applicable service rules, as excluding the incentive bonus and the additional conveyance

allowance. It is also made clear in the regulations applicable to the Development Officers that the remuneration paid to them is by way of

rewarding their performance by offering them incentives or penalising them with disincentives, linked to the net eligible premium in case of poor

performance. The manner in which the cost ratio is determined, viz., the proportion of the remuneration paid to the net eligible premium is also laid

down by the corporation. The remuneration payable to the officer is not to be in excess of 20 per cent of the net eligible premium collected on the

policies secured by the Development Officer. The LIC of India (Special Regulations) 1960 Schedule III contains special provisions relating to

Class H Development Officers. The instructions given by the Life Insurance Corpn. pursuant to the powers conferred on it in Regulation IV of the

Staff Regulation provides that where the cost ratio of a Development Officer in any appraisal year exceeds the prescribed cost ratio, he shall be

subject to one or more disincentives. The disincentives are graded in clause 5.2 of the instructions as 50 per cent cut in Conveyance Allowance, in

addition to no increment, and one, two or three decrements in basic pay. Clause 5.3 of the instruction states that the appropriate disincentive will

depend on the extent by which the actual cost ratio in the appraisal year is in excess of the prescribed cost ratio for that year. It will also depend

upon whether the actual cost ratio has exceeded the prescribed cost ratio for the first, second, third or subsequent year in succession.

The instruction also provides for incentive bonus payable to those whose cost ratio is less than 20 per cent. The booklet issued by the LIC

entitled the Development Officers Guide to Success, at page 15, sets out the meaning of cost ratio. The cost ratio in an appraisal year is to be

determined by applying the following formula:

Yearly expenses X 100 divided by F.Y.S.P.I. (Eligible Premium Income)

Whether F.Y.S.P.I. is the First Year Scheduled Premium Income (eligible Premium income)

The eligible premium is defined to mean the scheduled first year premium income received by the Corporation in respect of business secured

by the agents - under the Development Officer which is adjusted in the relevant appraisal year.

The Development Officer whose cost ratio does not exceed 20 per cent in an appraisal year alone is eligible for incentive bonus. The formula

for determining the basic incentive bonus is as under:

Net eligible premium in excess of

five times the annual remuneration 6 per cent of such excess

Net eligible premium in excess of

seven times the annual remuneration 4 per cent of such excess

Net eligible premium in excess of

nine times the annual remuneration 2 per cent of such excess

This formula is also liable for modification. It is liable to be increased or decreased depending on the performance of the Development Officer

in respect of (1) No. of lives, (2) agents organisation, and (3) Recruitment of agent.

It is clear from what has been set out above that the Development Officers of LIC who are full time employees of the Corporation whose main

task is to develop business of life insurance. Such development is measured by the amount of premium secured in the first year on the new policies

by reason of efforts put in by the Development Officer. The efficiency of the Development Officer is judged with reference to the amount of the

first year premium that he generates and if the amount of premium so generated is at least five times to the amount of yearly expenses incurred by

the LIC on the Development Officer, his performance is regarded as satisfactory. With a view to encourage the Development Officers to raise

above that minimum standard, the officers are given incentives. If the performance falls below the minimum standard he is penalised by way of

disincentives.

All the amounts paid by the LIC to the Development Officer are paid pursuant to the relationship of employer and employee and no other

relationship between two is contemplated by any of the regulation. The Development Officer is not an independent contractor nor is he a partner

with the LIC in the business of life insurance by reason of the fact that he is able to reduce the percentage of the expenditure incurred on him in

relation to the premium income generated by him, to a figure below 20 per cent.

As a full time employee, the Development Officer receives salary and that salary is liable to suffer a decrease if his efficiency falls below a

standard which is measured by the cost ratio. He is given an incentive for efficient performance which has resulted in the cost ratio being brought

down. The amount paid as incentive, the amount paid as remuneration as also the amount paid after deducting the disincentives constitute the

,salary'' in the hands of the employees receiving those amounts. Such payments do not have any other legal character. Sections 16 and 17 of the

Act are sufficiently wide to take within their ambit all these payments which are made only by virtue of the Development Officer being an employee

of the LIC, who receives the amount from the LIC by reason of the performance of the work which he is required to carry out.

The learned counsel for the assessee submitted that the additional amount earned by the Development Officer as incentive bonus is earned

solely on account of the efforts voluntarily put in and, therefore, the amounts earned as a result of such voluntary effort do not stand on the same

footing as the salary received for performing normal duties at the level of efficiency prescribed as minimum. It was contended that the amount so

received by the officer for his more efficient performance of the by way of incentive is in fact-in the nature of a profit which has been earned and

that profit cannot be treated as part of the salary income and assessed as such. This argument proceeds on the premise that an employee even

while performing the duties attached to his office can have two distinct legal capacities one as employee and the other as independent contractor or

a partner. No factual foundation is available to the assessee to permit the assessee to contend that he could, even while being a whole time

employee, still claim to be an independent contractor while performing efficiently the work which he was required to perform as a full time

employee. There is nothing on record to support the argument that the Development Officer is a partner with the LIC with a right to share in the

agreed proportion the premium income generated by the officer.

The Development Officer can claim a right to exclude part or whole of the incentive bonus or the additional conveyance allowance only if those

amounts can be brought under any of the provisions in the Act which permits the assessee to exclude those amounts from the computation of his

income or salary. If these allowances are regarded as perquisites, they cannot be excluded, as admittedly there is no notification issued u/s 10(14)

(i).

The counsel submitted that having regard to the use of the word profit in section 17(1)(iv), the expenditure incurred by the employee for

earning that amount over and above normal salary, should be excluded and the amount determined after excluding that expenditure alone be taken

into account for being added to the normal salary as profit. This argument is in fact the once that found favour with the Gujarat High Court.

Profits, fees, commissions and perquisites referred to section 17(1)(iv) may be in lieu of or in addition to regular salary or wages. They are all

as much taxable as regular salary, or wages. A lump sum paid in lieu of a taxable benefit is equally taxable. The payment must be a reward or

return for his acting as an employee. Incentive bonus cannot in any view be properly regarded as ''profit'' for the earning of which expenditure is

required to be incurred and which expenditure can be claimed as a deduction. It can at best be regarded as a commission at as it is calculated as a

percentage of the premium generated. No deduction, therefore, is permissible while computing the total income of the assessee. Having regard to

the scheme providing for those payments which shows in abundantly clear terms that the incentive is an addition to the normal remuneration for

performance at a level higher than the minimum it is only an addition to the salary. Incentives bonus paid is not only to Development Officers of the

LIC but to workers in almost every large industry and such incentives bonus has not been regarded as ''profit''.

The learned counsel for the assessee sought to persuade us to differ from the earlier judgment of this court and to refer the matter to a larger

Bench. Having examined the contentions put forth by the learned counsel and having considered the material placed before us, we are not

persuaded that the judgment rendered by this court in E. A. Rajendran''s case (supra) requires reconsideration.

The question referred to us, therefore, is answered in favour of the revenue and against the assessee by holding that the incentive bonus and the

additional conveyance allowance paid by the LIC to its Development Officers form part of the salary of the Development Officers and are exigible

to tax accordingly. In the circumstances of the case, to direct the parties to bear their respective costs.