P. Govindan Nair, C.J:— A very short question involving a small sum of money is covered by the question referred to us by the Income-tax Appellate Tribunal, Cochin Bench, reading as follows:
“Whether, on the facts and in the circumstances of the case, the passage money amounting to Rs. 1,525 paid to the assessee by his employer being the cost of the trip made by the assessee's son from India to the U.K during the relevant previous year is exempt under section 10(6)(i) of the Income-tax Act, 1961?”
2. The year of assessment was 1969–70 and the assessee was one Mr. G.B Shuttleworth. He proceeded on home leave to the U.K on June 1, 1969, and returned to India on October 3, 1969. His son, who was in the U.K, came to India on July 20, 1968, and returned from India to the U.K on September 16, 1968. The assessee received a sum of Rs. 3,050 from his employer which was the passage money for the trip for his son from the U.K to India and from India to the U.K The assessee claimed one-half of that amount, Rs. 1,525 as not includible in his income in view of section 10(6)(i) of the Income-tax Act, 1961, for short, “the Act”.
3. This claim was rejected by the Income-tax Officer. But the assessee succeeded in his appeal before the Appellate Assistant Commissioner and in further appeal before the Tribunal by the Department, the decision of the Appellate Assistant Commissioner has been upheld.
4. Section 10(6)(i) is in these terms:
“10. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included—……………
(6) in the case of an individual who is not a citizen of Jndia,—
(i) subject to such conditions as the Central Government may prescribe, passage moneys or the value of any free or concessional passage received by or due to such individual,—
(a) from his employer, for himself, his spouse and children, in connection with his proceeding on home leave out of India.”
5. Admittedly, the Central Government has not prescribed any conditions as envisaged by section 10(6)(i). The Board of Revenue issued a circular dated May 19, 1958. It is not contended before us that the terms of the circular had been violated. We are assuming without deciding that the circular would apply. So the only question arising for decision is whether the sum of Rs. 1,525 allowed as passage money for the trip of the son of the assessee from India to the U.K on September 16, 1968, was passage money received by the assessee for his child in connection with his proceeding on home leave. There is a clear finding of the Appellate Assistant Commissioner that this passage money was received by the assessee in connection with his proceeding on home leave and as we understand paragraph 7 of the order of the Tribunal read with paragraphs 8 and 9 of its order, the finding of the Appellate Assistant Commissioner has been confirmed by the Tribunal. That finding has not been canvassed before us by any appropriate question having been referred to this court for its opinion. The answer to the question referred to us can, therefore, only be in the affirmative, that is, in favour of the assessee and against the Department.
6. Counsel on behalf of the Revenue contended that in order that the section may be attracted, the initial journey must originate from India to a country outside India and that, on the facts and circumstances of the case, the son having commenced his journey from the U.K on July 20, 1968, his passage money for the journey from India back to the U.K on September 16, 1968, cannot be claimed by the assessee as not his income. We find no justification for limiting the ambit of the section. Every word of it we think had been satisfied in this case in letter and spirit. It is conceivable that a child may not have been in existence at the time the assessee set out from India on his home leave and the child could come into existence before he returns to India. That child too we think will be entitled to the passage money which was received by the assessee or was due to the assessee.
7. Further complicated questions as to the ambit of the section were mentioned at the bar. The assessee's counsel contended that even proceeding on home leave was unnecessary for the section to be attracted; He urged that as long as the passage money was due in connection with an employee proceeding on home leave, and if it had become due during the accounting period irrespective of the fact whether he did the journey or not, he would be entitled to claim that the passage money is not his income in view of section 10(6)(i) of the Act. This contention raises a question which we are not called upon to consider in this case and so we express no opinion on this matter.
8. We answer the question in the affirmative, that is, in favour of the assessee and against the Department. The assessee will have his costs from the Department including counsel's fee which we fix at Rs. 250.
9. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be sent to the Appellate Tribunal as required by sub-section (1) of section 260 of the Income-tax Act, 1961.
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