Dilip Loyalka, Kolkata V. A.C.I.T., Circle-1, Asansol, Asansol

ITA 22/KOL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4539 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 06-01-2014
• Court: TRIBUNAL
• Department Lawyers: R K KUREEL
• Assessee Lawyers: DILIP LOYALKA

Judgement Text

I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NOS. 22, 1514 & 2286 /KOL/ 2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 DILIP LOYALKA,..................................... ................................APPELLANT 16, MANGOE LANE, 1 ST FLOOR, KOLKATA-700 001 [PAN : ABAPL 9750 D] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..............RESPONDENT CIRCLE-1, ASANSOL, PARMAR BUILDING, G.T. ROAD (WEST), ASANSOL-713 304 APPEARANCES BY: SHRI DILIP LOYALKA, C.A., FOR THE ASSESSEE SHRI R.K. KUREEL, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JUNE 10, 2016 DATE OF PRONOUNCING THE ORDER : JULY 8, 2016 O R D E R THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THREE SEPARATE ORDERS DATED 22.11.2013, 19.05.2014 AND 02 .12.2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ASANS OL FOR THE ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10 RESPECTIVELY AND SINCE THE SOLITARY COMMON ISSUE IS INVOLVED THEREIN RELATING TO THE AS SESSEES CLAIM FOR DEDUCTION UNDER SECTION 80QQB, THE SAME HAVE BEEN H EARD TOGETHER AND ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED O RDER. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS A CHARTERED ACCOUNTANT BY PROFESSION. IN THE RETURNS OF INCOME FILED FOR THE YEARS UNDER CONSIDERATION, DEDUCTION UNDER SECTION 80QQB AMOUNTING TO RS.2,74,374/-, RS.1,78,875/- AND RS.1,80,000/- WAS CLAIMED BY HIM FOR A.Y. 2007-08, 2008-09 AND 2009-10 RESPECTIVELY. THE SAID DEDUCTION WAS I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 2 OF 6 CLAIMED ON ACCOUNT OF ROYALTY INCOME RECEIVED BY TH E ASSESSEE FROM THE PUBLISHER, NAMELY BOOK CORPORATION FOR THE BOOK N AMELY HOW TO HANDLE INCOME TAX PROBLEMS CO-AUTHORED BY HIM. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE F OR DEDUCTION UNDER SECTION 80QQB WAS EXAMINED BY THE ASSESSING OFFICER AND ON SUCH EXAMINATION, HE DISALLOWED THE SAME IN ALL THE THRE E YEARS UNDER CONSIDERATION FOR THE FOLLOWING REASONS:- THE ASSESSEE HAS CO-AUTHORED INCOME TAX RELATED BO OK NAMELY 'HOW TO HANDLE INCOME TAX PROBLEMS'. THE BOO K CONTAINS EXPLANATIONS RELATED WITH PROCEDURAL AND SUBSTANTIVE LAWS SOMETIMES WITH REFERENCE TO CASE L AWS OF VARIOUS HIGH COURTS AND SUPREME COURT AND LEGAL ASP ECTS OF DIFFERENT ISSUES UNDER THE INCOME TAX ACT, 1961 AND INCOME TAX RULES, 1962 IN QUESTION ANSWER FORMAT. THE ASSE SSEE QUOTED MANY CASE LAWS AND INTERPRETED DIFFERENT PRO VISIONS OF INCOME TAX ACT AND RULES. SO NO IMAGINATIVE, CRE ATIVE OR ARTISTIC SKILL IS INVOLVED THERE. THE BOOK DOES NOT PROVIDE ANY ORIGINAL WORK OF LITERATURE BUT A MERE REPRODUCTION OF INCOME TAX QUERIES IN A SIMPLISTIC MANNER. THIS BOO K ACTS AS A GUIDE BOOK FOR INCOME TAX ASSESSEES HENCE IT CAN BE CALLED A GUIDE BOOK FOR INCOME TAX ASSESSEES AND NOT A WOR K OF ARTISTIC, SCIENTIFIC OR IITERARY NATURE. 3. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER O N ACCOUNT OF HIS CLAIM FOR DEDUCTION UNDER SECTION 80QQB FOR ALL THE THREE YEARS UNDER CONSIDERATION WAS CHALLENGED BY THE ASSESSEE IN THE APPEALS FILED BEFORE THE LD. CIT(APPEALS). AFTER CONSIDERING THE SUBMISS IONS MADE BY THE ASSESSEE AND PERUSING THE RELEVANT MATERIAL AVAILAB LE ON RECORD, THE LD. CIT(APPEALS) FOUND THAT A SIMILAR ISSUE RAISED BY T HE ASSESSEE RELATING TO DEDUCTION UNDER SECTION 80QQB FOR A.Y. 2005-06 WAS DECIDED BY HIM VIDE HIS APPELLATE ORDER DATED 11.02.2013 AGAINST THE AS SESSEE THEREBY CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING O FFICER ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80QQB. FOLLOWING THE SAID DECISION RENDERED FOR A.Y. 2005-06, THE LD. CIT(APP EALS) CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SE CTION 80QQB FOR ALL THE THREE YEARS UNDER CONSIDERATION AND DISMISSED T HE APPEALS FILED BY THE ASSESSEE ON THIS ISSUE. AGGRIEVED BY THE ORDERS OF THE LD. I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 3 OF 6 CIT(APPEALS), THE ASSESSEE HAS PREFERRED THESE APPE ALS BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, THE SOLITARY COM MON ISSUE INVOLVED IN THESE APPEALS OF THE ASSESSEE RELATING TO HIS CLAIM FOR DEDUCTION UNDER SECTION 80QQB IS SQUARELY COVERED BY THE DECISION O F THE DIVISION BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 20 05-06 RENDERED VIDE ITS ORDER DATED DECEMBER 4, 2015 IN FAVOUR OF THE ASSES SEE PASSED IN ITA NO. 536/KOL/2013. A COPY OF THE SAID ORDER IS PLACED ON RECORD BEFORE ME AND PERUSAL OF THE SAME SHOWS THAT A SIMILAR CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80QQB ON ACCOUNT OF ROYALTY INCOME RECEIVED FOR THE BOOK, NAMELY HOW TO HANDLE INCOME TAX PROBLEMS , HAS BEEN ALLOWED BY THE TRIBUNAL AFTER DISCUSSING ALL THE RE LEVANT ASPECTS IN PARAGRAPH NOS. 7, 8 & 9 OF ITS ORDER, WHICH READ AS UNDER:- 7. THE WORD LITERARY WORK HAS NOT DEFINED UNDER TH E ACT BUT HAS BEEN DEFINED BY SECTION 2(0) OF THE COPYRIGHT ACT, 1957. THE EXPRESSION LITERARY WORK COVERS WHICH ARE EXPRESSED IN PRINTING OR WRITING IRRESPECTIVE OF THE QUESTION WHETHER THE QUALITY OR STYLE IS HIGH OR WHETHER THERE IS ANY LITERARY MERI T OR NOT. THE EXPRESSION LITERARY WORK MEANS NOT ONLY SUCH WORK W HICH DEALS WITH ANY PARTICULAR ASPECT OF LITERATURE IN POETRY BUT ALSO INDICATES A WORK WHICH IS LITERATURE. I.E. ANYTHING IN WRITING WHICH COULD BE SAID TO COME WITHIN THE AMBIT OF LIT ERARY WORK. HON'BLE KERALA HIGH COURT HAS DEALT ON THIS ISSUE I N THE CASE OF INFOSEEK SOLUTIONS & ANR. VS. KERALA LAW TIMES (200 7) 34 PTC 231 (KER) AND OBSERVED THAT A LAW REPORT IS A COMPO SITE DOCUMENT AND ITS HEAD NOTES, EDITORIAL COMMENTS, FO OTNOTES, SETTING, LAYOUT, PRESENTATION ETC. AND EVEN THE SKI LL AND LABOUR INVOLVED IN CHOOSING AS TO WHETHER A JUDGMENT SHOUL D BE REPORTED IS A LITERARY WORK LEADING TO THE REPORTER AND PUBLISHER ACQUIRING COPYRIGHT OVER SUCH REPORT, AS A COMPOSIT E DOCUMENTS INCLUDING THE TEXT OF THE JUDGMENT AS SO PUBLISHED BY THE REPORTER. 8. SIMILARLY, HON'BLE SUPREME COURT IN THE CASE OF EASTERN BOOK COMPANY & ORS. VS. D. B. MODAK & ANR. (2008) 95 AIR 809 (SC) HAS ALSO ADJUDICATED IDENTICAL ISSUE AND HELD THAT AFFIRMING THE ABOVE VIEW THE APEX COURT HELD THAT NOT ONLY THE HE AD NOTES AND SHORT NOTES ARE LITERARY WORKS BUT EVEN THE JUDGMEN TS CITED BY I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 4 OF 6 THE LAW REPORTERS BY (I) SEGREGATING THE EXISTING P ARAGRAPHS IN THE ORIGINAL TEXT BY BREAKING THEM INTO SEPARATE PA RAGRAPHS; (II) ADDING INTERNAL PARAGRAPH NUMBERING WITHIN A JUDGME NT AFTER PROVIDING UNIFORM PARAGRAPH NUMBERING TO THE MULTIP LE JUDGMENTS; AND (III) INDICATING IN THE JUDGMENT THE JUDGES WHO HAVE DISSENTED OR CONCURRED BY INTRODUCING THE PHRA SES LIKE 'CONCURRING', 'PARTLY CONCURRING', 'DISSENTING', 'S UPPLEMENTING', 'MAJORITY EXPRESSING NO OPINION' ETC. HAVE TO BE VI EWED IN A DIFFERENT LIGHT. HON'BLE SUPREME COURT FURTHER EXPL AINED THE LITERARY WORK IN TERM OF LEGAL DISCOURSE THAT THE T ASK OF PARAGRAPH NUMBERING AND INTERNAL REFERENCING REQUIR ES SKILL AND JUDGMENT IN GREAT MEASURE. THE EDITOR WHO INSER TS PARA NUMBERING MUST KNOW HOW LEGAL ARGUMENTATION AND LEG AL DISCOURSE IS CONDUCTED AND HOW A JUDGMENT OF A COUR T OF LAW MUST READ. OFTEN LEGAL ARGUMENTS OR CONCLUSIONS ARE EITHER CLUBBED INTO ONE PARAGRAPH IN THE ORIGINAL JUDGMENT OR PARTS OF THE SAME ARGUMENT ARE GIVEN IN SEPARATE PARAGRAPHS. IT REQUIRES JUDGMENT AND THE CAPACITY FOR DISCERNMENT FOR DETER MINING WHETHER TO CARVE OUT A SEPARATE PARAGRAPH FROM AN E XISTING PARAGRAPH IN THE ORIGINAL JUDGMENT OR TO CLUB TOGET HER SEPARATE PARAGRAPHS IN THE ORIGINAL JUDGMENT OF THE COURT. S ETTING OF PARAGRAPHS BY THE APPELLANTS OF THEIR OWN IN THE JU DGMENT ENTAILED THE EXERCISE OF THE BRAIN WORK, READING AN D UNDERSTANDING OF SUBJECT OF DISPUTES, DIFFERENT ISS UES INVOLVED, STATUTORY PROVISIONS APPLICABLE AND INTERPRETATION OF THE SAME AND THEN DIVIDING THEM IN DIFFERENT PARAGRAPHS SO T HAT CHAIN OF THOUGHTS AND PROCESS OF STATEMENT OF FACTS AND THE APPLICATION OF LAW RELEVANT TO THE TOPIC DISCUSSED IS NOT DISTURBE D, WOULD REQUIRE FULL UNDERSTANDING OF THE ENTIRE SUBJECT OF THE JUDGMENT. MAKING PARAGRAPHS IN A JUDGMENT COULD NOT BE CALLED A MECHANICAL PROCESS. IT REQUIRES CAREFUI CONSIDERATI ON, DISCERNMENT AND CHOICE AND THUS IT CAN BE CALLED AS A LITERARY WORK OF AN AUTHOR. CREATION OF PARAGRAPHS WOULD OBV IOUSLY REQUIRE EXTENSIVE READING, CAREFUL STUDY OF SUBJECT AND THE EXERCISE OF JUDGMENT TO MAKE PARAGRAPH WHICH HAS DE ALT WITH PARTICULAR ASPECT OF THE CASE, AND SEPARATING INTER MIXING OF A DIFFERENT SUBJECT. CREATION OF PARAGRAPHS BY SEPARA TING THEM FROM THE PASSAGE WOULD REQUIRE KNOWLEDGE, SOUND JUD GMENT AND LEGAL SKILL. IN OUR OPINION, THIS EXERCISE AND CREA TION THEREOF HAS A FLAVOUR OF MINIMUM AMOUNT OF CREATIVITY. THE SAID PRINCIPLE WOULD ALSO APPLY WHEN THE EDITOR HAS PUT AN INPUT W HEREBY DIFFERENT JUDGES' OPINION HAS BEEN SHOWN TO HAVE BE EN DISSENTING OR PARTLY DISSENTING OR CONCURRING, ETC. IT ALSO RE QUIRES READING OF THE WHOLE JUDGMENT AND UNDERSTANDING THE QUESTIO NS INVOLVED AND THEREAFTER FINDING OUT WHETHER THE JUDGES HAVE DISAGREED OR HAVE THE DISSENTING OPINION OR THEY ARE PARTIALLY D ISAGREEING AND PARTIALLY AGREEING TO THE VIEW ON A PARTICULAR LAW POINT OR EVEN ON FACTS. IN THESE INPUTS PUT IN BY THE APPELLANTS IN THE JUDGMENTS REPORTED IN SCC, THE APPELLANTS HAVE A CO PYRIGHT AND NOBODY IS PERMITTED TO UTILIZE THE SAME. 9. IT IS CLEAR THAT EVEN THE GOVERNMENT I.E. CBDT H AS RECOGNISED ASSESSEE'S WORK BY AWARDING HIM PRATYAKSH KAR SAHIT YA I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 5 OF 6 PURUSKAR ON HIS HINDI EDITION OF THE SAME BOOK AS S ECOND BEST LITERARY WORK ON INCOME TAX IN HINDI. IT IS A FACT THAT THE ASSESSEE HAS AUTHORED THIS BOOK ON INCOME TAX PROBL EMS IN QUESTION ANSWER FORM. HIS BOOK IS ON A COMPLEX ISSU E WHICH REALLY NEEDS INTELLECT AND KNOWLEDGE. HE HAS RECEIV ED ROYALTY ON THE SAME. THE WORD LITERARY WORK HAS BEEN DEFINED B Y THE LAW DICTIONARY 'ADVANCE LAW LEXICON, EDITED BY JUSTICE Y. V. CHANDRACHUR, FORMER CJI IN 3RD EDITION OF VOLUME 3' AS UNDER: 'LITERARY AND ARTISTIC WORK IN THE INTERNATIONAL COPYRIGHTS ACT, 1886, 'UNLESS THE CONTEXT OTHERWISE REQUIRES, MEANS EVERY BOOK, PRINT, LITHOGRAPH, ARTICLE OF SCULPTURE, DRAMATIC PIECE, MUSINDIAN COPYRIGHT ACT COMPOSITION, PAINTING, DRAWING, PHOTOGRAPH AND OTHER WORK OF LITERATURE AND ART TO WHICH THE COPYRIGHTS ACTS OR THE INTERNATIONAL COPYRIGHTS ACTS, AS THE CASE REQUIRES EXTENDS.' 'COPYRIGHT PROTECTION EXTENDS TO LITERARY WORKS WHICH ARE DEFINED AS WORKS, OTHER THAN AUDIOVISUAL WORK, EXPRESSED IN WORDS, NUMBERS, OR OTHER VERBAL OR NUMERIC SYMBOLS OR INDICIA, REGARDLESS OF THE NATURE OF THE MATERIAL OBJECTS, SUCH AS BOOKS PERIODICALS, MANUSCRIPTS, PHONE RECORDS, FILMS, TAPES, DISKS OR CARDS IN WHICH THEY ARE EMBODIED. THE TERM 'LITERARY WORK' DOES NOT CONNOTE ANY CRITERION OF LITERARY MERIT OR QUALITATIVE VALUE AN D INCLUDES CATALOGUES AND DICTIONARIES, SIMILAR FACTUAL, REFERENCE OR INSTRUCTIONAL WORKS, COMPILATIONS OF DATA, COMPUTER DATA BASES, AND COMPUTER PROGRAMS.' 5. AS THE ISSUE INVOLVED IN THE YEARS UNDER CONSIDE RATION AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO A.Y. 2005-06, I RESPECTFULLY FOLLOW THE DECISION RENDERED BY THE TR IBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06 AND DELETE THE DISALLOWAN CE MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80QQB. 6 IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 8, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 8 TH DAY OF JULY, 2016 I.T.A. NOS. 22, 1514 & 2286/KOL./2014 ASSESSMENT YEARS: 2007-2008, 2008-2009 & 2009-2010 PAGE 6 OF 6 COPIES TO : (1) SHRI DILIP LOYALKA, 16, MANGOE LANE, 1 ST FLOOR, KOLKATA-700 001 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, ASANSOL, PARMAR BUILDING, G.T. ROAD (WEST), ASANSOL-713 304 (3) COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL; (4) COMMISSIONER OF INCOME TAX- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.