M/S SACHIN R. TENDULKAR, MUMBAI V. THE DY CIT CIR 19(3),

ITA 430/MUM/2008

• Counselvise Citation: 43019914 RSA 2008
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 02-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-01-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJEEV DUTT PER R K
• Assessee Lawyers: ARVIND SONDE
• Keywords: Reopening of assessment; Gift; Depreciation; Salary income; Rule of consistency; Question of law; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

1 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R K PANDA, AM & SMT ASHA VIJAYARAGHAV AN, JM ITA NOS.428 TO 430/MUM/2008 (ASST YEARS2001-02; 2003-04 & 04-05) & ITA NO. 6862/MUM/2008 (ASST YEAR 2002-03) SHRI SACHIN R TENDULKAR LA-MER, 10 TH FLOOR MISTRY PARK MT MARRY STEPS BANDRA (W) MUMBAI 50. VS THE ASST COMMR. OF INCOME TAX RANGE 193), MUMBAI (APPELLANT) (RESPONDENT) PAN NO.AAAPT4135B ASSESSEE BY SHRI ARVIND SONDE REVENUE BY SHRI SANJEEV DUTT PER R K PANDA, AM THE ABOVE FOUR APPEALS FILED BY THE ASSESSEE ARE DI RECTED AGAINST THE SEPARATE ORDERS OF THE CIT(A)-XIX, MUMBAI. APPEALS IN ITA NO. 428 TO 430/MUM/2008 RELATE TO AYS 2001-02, 2003-04 AND 200 4-05 RESPECTIVELY. THE APPEAL IN ITA NO.6862/MUM/2008 FILED BY THE ASS ESSEE IS DIRECTED AGAINST THE ORDER DATED 2.8.20008 OF THE CIT(A) XIX , MUMBAI AND RELATES TO ASSESSMENT YEAR 2002-03. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPEALS; THEREFORE, THESE WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 429/MUM/2008 (FOR AY 2003-04) 2 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 2 IN GROUNDS OF APPEAL NO.1, THE ASSESSEE HAS CHALL ENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ACTION OF THE ASSESSIN G OFFICER IN DISALLOWING THE DEDUCTION OF ` 2,08,59,707/- U/S 80RR OF THE I T ACT 1961. 2.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSE SSEE IS A LEADING CRICKETER AND FILED HIS RETURN OF INCOME ON 31.10.2003 DECLA RING TOTAL INCOME OF ` 18,51,06,510/-. IN THE COMPUTATION STATEMENT FILED ALONG WITH THE RETURN, THE ASSESSEE HAD SHOWN SALARY INCOME OF ` 16,000/- FROM M/S IDL LTD; ` 19,51,98,706/- SHOWN AS INCOME FROM BUSINESS/PROFES SION AND ` 77,63,166/- AS INCOME FROM OTHER SOURCES. THE ASSES SING OFFICER, NOTED FROM THE TAX AUDIT REPORT FILED IN FORM NO.3CD THAT THE NATURE OF BUSINESS/PROFESSION HAS BEEN MENTIONED AS SPORTS S PONSORSHIP/MODELLING. THE INCOME AND EXPENDITURE ACCOUNT HAS SHOWN ` 19,95,27,085/- AS GROSS RECEIPTS FROM SPORTS SPONSORSHIP AND ADVERTISEMEN TS. AS PER SCHEDULE-1, THIS CONSISTS OF ` 5,92,31,211/- RECEIVED IN FOREIGN EXCHANGE AND ` 14,02,95,874/- RECEIVED IN INDIAN RUPEES. THE AMOU NT OF ` 5,92,31,211/- RECEIVED IN FOREIGN EXCHANGE IS FROM THE FOLLOWING COMPANIES: SL.NO NAME OF THE COMPANY AMOUNT (RS) 1 ESPN STAR SPORTS 3,19,94,795/- 2 PEOSICO INC 73,33,500/- 3 VISA 1,99,02,916/- TOTAL 5,92,31,211/- 2.2 THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80RR AMO UNTING TO ` 1,77,69,363/- IN RESPECT OF THE ABOVE RECEIPTS REC EIVED IN FOREIGN EXCHANGE. THE ASSESSING OFFICER ANALYSED THE AGREE MENT DATED 24.9.2001 WITH WORLD TEL INDIA & WORLD TEL INC.; AGREEMENT DA TED 30.6.2000 WITH VISA INTERNATIONAL; AGREEMENT DATED 26.6.2002 WITH ESPN STAR SPORTS AND AGREEMENT DATED 7.3.1989 WITH PEPSI CO LTD. HE ALS O ANALYSED THE PROVISIONS OF SEC. 80RR. ACCORDING TO THE A.O. , UN DER THE PROVISIONS OF SECTION 80 RR, THE FIRST ISSUE TO BE DETERMINED I S WHETHER THE ASSESSEE IS A 3 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR PLAYWRIGHT, ARTIST, MUSICIAN, ACTOR OR SPORTSMAN AN D THE SECOND ISSUE TO BE DETERMINED IS WHETHER THE INCOME FOR WHICH DEDUCTIO N IS CLAIMED, IS DERIVED BY HIM IN THE EXERCISE OF HIS PROFESSION. THE ASSE SSING OFFICER ASKED THE ASSESSEE TO EXPLAIN AS TO HOW THE RECEIPTS FROM THE ABOVE AGREEMENTS CONSTITUTE INCOME DERIVED BY HIM IN THE EXERCISE OF HIS PROFESSION. HE ALSO ASKED THE ASSESSEE TO EXPLAIN THE NATURE OF PROFESS ION CLAIMED AND TO JUSTIFY HIS CLAIM FOR DEDUCTION U/S 80RR. 2.3 IT WAS EXPLAINED BY THE ASSESSEE THAT HE IS A P OPULAR MODEL WHO ACTS IN VARIOUS COMMERCIALS FOR ENDORSING PRODUCTS OF VA RIOUS COMPANIES. A MAJOR PART OF THE INCOME DERIVED BY HIM DURING THE YEAR IS FROM THE EXERCISE OF HIS PROFESSION AS AN ACTOR IN THESE COMMERCIAL S. SINCE THE ASSESSMENT YEAR 1994-95 THE INCOME DERIVED BY HIM FROM ACTING HAS BEEN REFLECTED AS INCOME FROM BUSINESS & PROFESSION. INCOME FROM PL AYING CRICKET IS REFLECTED AS INCOME FROM OTHER SOURCES SINCE HE I S A NON PROFESSIONAL CRICKETER. IT WAS SUBMITTED THAT SECTION 80RR PROV IDES FOR A DEDUCTION FROM THE INCOME DERIVED BY AN ASSESSEE FROM THE EXERCISE OF HIS PROFESSION AS AN ACTOR, PLAYWRIGHT, ARTIST, MUSICIAN OR SPORTSMAN I NCLUDING AN ATHLETE. THE INCOME DERIVED BY THE ASSESSEE IN RESPECT OF WHICH DEDUCTION U/S 80RR HAS BEEN CLAIMED IS FROM THE EXERCISE OF HIS PROFESSION AS AN ACTOR. THE FEES HAVE BEEN RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE IN CONSIDERATION FOR HIS ACTING IN VARIOUS COMMERCIALS FOR ENDORSING PRODUCT S. THE OTHER CONDITIONS MENTIONED IN SEC. 80RR HAVE ALSO BEEN SATISFIED I.E . THE AMOUNT HAS BEEN RECEIVED FROM A PERSON WHO IS NOT A RESIDENT IN IND IA AND THE AMOUNT HAS BEEN BROUGHT INTO INDIA IN CONVERTIBLE FOREIGN EXCH ANGE WITHIN THE REQUISITE PERIOD. 2.4 IT WAS FURTHER SUBMITTED THAT THE ISSUE WAS EXA MINED IN DETAIL FOR THE EARLIER YEARS AND DEDUCTION UNDER THIS SEC HAS BEEN ALLOWED BY THE DEPARTMENT SINCE THE ASSESSMENT YEAR 1997-98. WHILE ALLOWING THE DEDUCTION U/S 80RR, THE DEPARTMENT HAS HOWEVER, HEL D THAT EXPENSES ATTRIBUTABLE TO THE EARNING OF THIS INCOME OUGHT TO BE DEDUCTED. THE MATTER 4 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR HAS BEEN PARTIALLY ALLOWED BY THE CIT(A) IN THE PAS T AND IS PENDING BEFORE THE TRIBUNAL. ACCORDINGLY, IT WAS SUBMITTED THAT T HERE SHOULD NOT BE ANY REASON TO DEVIATE FROM THE STAND TAKEN BY THE DEPAR TMENT IN THE PAST. 2.5 ON BEING QUESTIONED BY THE ASSESSING OFFICER TO EXPLAIN AS TO WHY THE INCOME FROM PLAYING CRICKET IS CLAIMED TO BE TAXE D UNDER THE HEAD OTHER SOURCES, IT WAS EXPLAINED THAT SINCE PLAYING CR ICKET IS NOT HIS PROFESSION, THE INCOME FROM PLAYING CRICKET AND LOGO MONEY RECE IVED FROM THE BCCI HAS BEEN SHOWN AS INCOME FROM OTHER SOURCES. THIS ISS UE HAS BEEN ACCEPTED BY THE TRIBUNAL IN ASSESSMENT YEAR 1997-98 WHICH UPHEL D THE CONTENTION OF THE ASSESSEE THAT HE IS A NON-PROFESSIONAL CRICKETE R. 2.6 REGARDING THE CLAIM THAT THE DEDUCTION U/S 8RR HAS BEEN ALLOWED IN EARLIER YEARS, THE ASSESSING OFFICER NOTED THAT FIR STLY, THE RETURNS FOR THE LAST FEW YEARS HAVE NOT BEEN SCRUTINIZED U/S 143(3) AND HAS ONLY BEEN PROCESSED U/S 143(1). HE HELD THAT THE PRINCIPLE OF RES-JUDICATA DOES NOT APPLY TO INCOME TAX PROCEEDINGS. SECONDLY, IN THE TRIBUNALS ORDER FOR ASSESSMENT YEAR 1997-98, THE ISSUE INVOLVED WAS APP LICABILITY OF CBDT CIRCULAR NO.447 DATED 22.1.1996 AND THE TAXABILITY OF AWARDS AND PRIZE MONEY. WHETHER THE ASSESSEE IS ENTITLED TO DEDUCTI ON U/S 80RR WAS NOT AN ISSUE IN THE ABOVE ORDER OF THE TRIBUNAL. FURTHER, THE DEPARTMENT HAS ALSO FILED AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL. 2.7 AS REGARDS THE CLAIM OF THE ASSESSEE THAT HE IS A NON-PROFESSIONAL CRICKETER, THE ASSESSING OFFICER REJECTED THE SAME BECAUSE OF THE FOLLOWING REASONS AFTER ANALYSING THE MEANING OF WORD PROF ESSIONAL CRICKETER FROM THE POCKET OXFORD DICTIONARY. I) HE RELATES AND BELONGS TO THE CRICKETING PROFESS ION; II) HE IS ENGAGED IN THE ACTIVITY OF PLAYING CRICKE T AS A PAID JOB RATHER THAN AS AN AMATEUR. HE DOES NOT LAY CRICKET ONLY AS A HOBBY . IT WOULD BE CORRECT TO SAY THAT PLAYING CRICKET IS THE SOURCE OF HIS LIVELIHOO D AND IS THEREFORE, HIS PROFESSION; 5 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR III) HE IS UNDOUBTEDLY A FAMOUS AND COMPETENT CRICK ETER. THE ASSESSEE IS REPORTED TO BE PLAYING INTERNATIONAL CRICKET SINCE THE AGE OF 16 AND HAS BEEN PLAYING FOR THE INDIAN CRICKET TEAM, SINCE THEN. HE IS STATED TO HOLD THE RECORD FOR THE MOST RUNS IN ONE-DAY INTERNATIONALS AND THE MOST CENTURIES BOTH IN ONE-DAY INTERNATIONALS AND IN TEST CRICKET. HE REC EIVED THE RAJIV GANDHI KHEL RATNA, INDIAS HIGHEST SPORTING HONOUR, FOR 1997-98 AND WAS A WISDOM CRICKETER OF THE YEAR IN 1997. HE, ACCORDINGLY, HELD THAT THE ASSESSEE IS A PROFES SIONAL CRICKETER. THE ASSESSING OFFICER ALSO OBSERVED THAT IF SACHIN IS N OT A CRICKETER THEN WHO IS A CRICKETER? 2.8 SO FAR AS THE ARGUMENTS REGARDING THE INCOME DE RIVED BY THE ASSESSEE IN RESPECT OF WHICH DEDUCTION/S 80RR HAS BEEN CLAIM ED IS FROM THE EXERCISE OF HIS PROFESSION AS AN ACTOR, THE ASSESSING OFFI CER NOTED THAT THE THESE ARGUMENTS DO NOT APPEAR TO BE ACCEPTABLE. HE NOTED THAT THE ASSESSEE HAS RECEIVED REMUNERATION FOR PROVIDING A WIDE VARIETY OF SERVICES TO THESE COMPANIES. THE VARIOUS ACTIVITIES MENTIONED IN THE AGREEMENTS ARE NOTHING TO DO WITH THE CLAIM OF BEING AN ACTOR. THEREFORE , THE CLAIM OF BEING AN ACTOR DOES NOT JUSTIFY THIS DEDUCTION IN ANY WAY. F OR THIS PURPOSE, THE ASSESSING OFFICER NOTED CERTAIN CLAUSES OF THE AGRE EMENTS, WHICH ARE AS UNDER: AGREEMENT DATED 24.9.2001 WITH WORD TEL INDIA & WOR LD TEL INC.,: I) USING THE NAME, PHOTOS, LIKENESS, OR ORIGINAL VO ICE OF TENDULKAR II) PRODUCT SPOKESMAN WORK, PERSONAL APPEARANCES (E .G CORPORATE MEETINGS), MEDIA APPEARANCES (E.G TV SHOWS, INTERNE T CHATS ETC. III) USE OF CLOTHING AND FOOTWEAR IV) ENDORSEMENTS OF OTHER COMMERCIAL ACTIVITIES SUC H AS AND INCLUDING RESTAURANTS, CAFES, FRANCHISE ARRANGEMENT THROUGH I NVESTMENTS OR OTHERWISE. AGREEMENT DATED 30.6.2000 WITH VISA INTERNATIONAL : 6 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR I) SACHIN AGREES TO ALLOW HIS FACE, NAME, SIGNATURE, V OICE, PHOTOGRAPHY, ANY FACSIMILE OR IMAGE TO APPEAR ON AND BE USED IN CONN ECTION WITH THE PROMOTION OF VISA PRODUCTS AND SERVICES (2) USE OF SACHINS NAME 4.3 SACHIN GIVES THE ADVERTISE THE RIGHT TO USE SA CHINS PHOTOGRAPH AND AUTOGRAPH DURING THE TERM OF THE AGREEMENT ON THE FOLLOWING ITEMS SUCH AS 4.1.3 BOOKLETS/DIARIES ON SACHINS STATISTICS; 4.1.4 POST CARDS AND DUMMY VISA CARDS WHICH WILL B E USED ONLY AS GIFT ITEMS/MEMORABILIA AND/PR PRIZES, BUT NOT SOLD, EG D UMMY VISA CARDS; 5.1.1 SACHIN SHALL SIGN ITEMS INCLUDING CERTIFICATE S OF HONOUR/ACHIEVEMENTS 5.1.3 FOR SALES FORCE/MERCHANT ESTABLISHMENTS/SALES AGENTS OF VISA INTERNATIONALS MEMBER BANKS. AGREEMENT DATED 26.6.02 WITH ESPN STAR SPORTS : I) PLAYER IDENTIFICATION SHALL MEAN ANY WORDS, AND/O R SYMBIOSIS, AND OR PHOTOGRAPHIC AND/OR GRAPHIC REPRESENTATIONS OF PLAY ER BUT NOT USING PLAYER LOOK ALIKE, WHICH IDENTIFY THE PLAYER AND/OR HIS NAME AND LIKENS IN CONNECTION WITH THE PRODUCT. AGREEMENT DATED 7.3.1998 WITH PEPSICO INC. SCHEDULE 1 THE SERVICES TO BE PERFORMED BY SACHIN. 1. MODEL FOR AN ACT IN A MAXIMUM OF ONE COMMERCIAL FIL M PER YEAR INCLUDING EDITS AND VERSIONS THEREOF, DURING THE TERM OF THIS AGREEMENT IN RESPECT OF THE PRODUCTS. 2. MODEL FOR ADVERTISEMENTS OF THE PRODUCTS IN ALL OTH ER MEDIA E.G PRESS, MAGAZINES, RADIO, OUTDOOR, AND PACKAGING/PROMOTIONA L ITEMS TC. 3. ACT AS AN AMBASSADOR OF PEPSICO INC. DURING ALL HIS PUBLIC APPEARANCES AND ENDORSE THE PRODUCTS WHEREVER HE GOES AND AT AL L TIMES. 4. ENGAGE IN PROMOTING THE PRODUCTS THROUGH CAMPAIGNS AND AT ANY LOCATIONS OR CITIES AS DETERMINED BY PEPSICO INC WHICH SHALL NOT INCLUDE; A) ANY DOOR TO DOOR CAMPAIGN, OR B) ANY PROMOTION INVOLVING MASS CONTACT WITH THE PUBLI C. FOR ANY SUCH PROMOTION PEPSICO INC WILL ENSURE A REASONABLE DIST ANCE IS MAINTAINED BETWEEN SACHIN AND THE PUBLIC. 5. PERSONALLY DRINK AND PROMOTE THE PRODUCTS AND IN PA RTICULAR PEPSI AT PUBLIC AND PRIVATE APPEARANCES AND FUNCTIONS AND AT HOME. 7 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 2.9 THE A.O. NOTED THAT THE ASSESSEE HAS CLAIMED DE DUCTION/S 80RR ON THE REMUNERATION RECEIVED FROM THE ABOVE SERVICES A LSO. HE NOTED THAT THE ACTIVITIES LIKE PRODUCT SPOKESMAN WORK, USE OF C LOTHING AND FOOTWEAR ISSUING BOOKLETS/DIARIES ON SACHINS STATISTICS A ND SIGNING OF ITEMS INCLUDING CERTIFICATE OF HONOUR/ACHIEVEMENT FOR SAL E FORCE HAVE NOTHING TO DO WITH THE CLAIM OF BEING A CRICKETER. ACCORDING TO H IM, THE INCOME FROM THESE ACTIVITIES IS NOT DERIVED FROM ANY PROFESSION OF AN ACTOR IN TERMS OF SEC. 80RR. THE ASSESSEES CLAIM OF DEDUCTION U/S 80 RR O N ACCOUNT OF APPEARING IN ADVERTISEMENT FILMS BEING INCOME DERIVED FROM TH E EXERCISE OF HIS PROFESSION AS AN ACTOR WAS ALSO REJECTED BY HIM O N ACCOUNT OF THE FOLLOWING REASONS (AS PER PARA 11 OF THE ORDER):- (1) IT IS TRUE WHILE APPEARING IN AD FILMS, THE ASSESSE E WOULD HAVE TO DRESS IN A CERTAIN WAY AND WOULD HAVE TO FOLLOW THE SCRIPT, IN A MANNER SUGGESTED BY THE DIRECTOR. HOWEVER, THAT DO ES NOT MAKE THE ASSESSEE AN ACTOR. AS DISCUSSED ABOVE, THE POCKET OXFORD DICTIONARY SAYS THAT AN ACTOR IS A PERSON WHOSE PROFESSION IS ACTING. BY ENDORSING CERTAIN PRODUCTS IN ADVERTISEMENTS, THE A SSESSEE DOES NOT BECOME A PERSON WHOSE PROFESSION IS ACTING. THIS IS BECAUSE ENDORSING A PRODUCT IN AN ADVERTISEMENT IS AN ACTIV ITY WHICH IS PERIPHERAL TO HIS PROFESSION OF CRICKETER. CELEBRI TY ENDORSEMENTS CAPITALIZE ON THE CELEBRITY STATUS OF THE PERSON EN DORSING THE PRODUCT. THEY DO NOT MAKE THE CELEBRITY AN ACTOR BY PROFESSI ON. (2) WHEN SOMEBODY WATCHES THE ASSESSEE ENDORSE A PARTIC ULAR PRODUCT IN SAY, AN ADVERTISEMENT FILM, HE TENDS TO APPRECIATE THE PRODUCT BECAUSE SACHIN HAS ENDORSED THE PRODUCT AND NOT BEC AUSE SACHIN IS A VERY GOOD MODEL OR ACTOR. FOR EXAMPLE, IF SACHIN ENDORSES A BRAND IN AN AD FILM, THE VIEWER OF THE AD FILM APPRECIATE S THE BRAND BECAUSE IT IS SACHIN WHO IS ENDORSING IT. THERE ARE MODELS AND ACTORS WHO MAY BE BETTER PERFORMERS BUT IF THEY WERE TO ENDORS E THAT BRAND, IT DOES NOT HAVE THE SAME IMPACT AS SACHIN ENDORSING T HE BRAND. (3) IT IS ALSO REMARKABLE THAT IN ALL THE ADVERTISEMENT S IN WHICH THE ASSESSEE APPEARS, WHAT IS HIGHLIGHTED IS HIS PERSON ALITY AS A CRICKETER. THE ADVERTISEMENTS USING SACHIN TENDULKAR ARE MADE VERY DIFFERENTLY FROM ADVERTISEMENTS USING A MODEL OR ACTOR. (I) IT IS IMPORTANT TO NOTE THAT THE COMPANY WHICH WANT S SACHIN TO ENDORSE ITS BRAND, USES THE SERVICES OF SACHIN BECA USE HE IS SACHIN TENDULKKAR, THE CRICKETING LEGEND. (II) THE MAKER OF THE AD FILM MAKES THE COMMERCIAL AD FI LM HIGHLIGHTING SACHINS PERSONALITY AS A CRICKETER. 8 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR (III) SACHIN GETS PAID FOR ENDORSING THE BRAND BECAUSE HE IS A LEADING CRICKETER AND NOT BECAUSE HE IS AN ACTOR. (IV) THE VIEWER OF THE AD FILM ALSO SEES SACHIN NOT AS A N ACTOR OR MODEL BUT AS SACHIN TENDULKAR, THE CRICKETING LEGEND. IN AN AD FILM, WHAT MATTERS IS THE SHEER PRESENCE OF SACHIN THE CRICKE TER. IT REALLY DOESNOT MATTER EVEN IF HE PERFORMS BADLY IN THE FIL M. (4) AN AD FILM FEATURING SACHIN SUCCEDDS BECAUSE SACHIN IS A SUCCESS AS A CRICKETER. THE ASSESSEES POPULARITY AND INCOME FROM ADVERTISEMENTS WOULD DEPEND ON HIS PERFORMANCE IN C RICKET AND NOT ON HIS ACTING ABILITIES. (5) AS THE TAX AUDIT REPORT IN FORM NO. 3CD FILED WITH THE RETURN, THE NATURE OF BUSINESS/PROFESSION IS STATED TO BE SPOR TS SPONSORSHIP/MODELLING. THE ASSESSEES REPLY DATED 24.2.06 SAYS THAT THE INCOME DERIVED BY OUR CLIENT, IN RESPECT OF WHICH DEDUCTION UNDER SECTION 80RR HAS BEEN CLAIMED IS FROM THE EXE RCISE OF HIS PROFESSION OF AN ACTOR. THERE IS A CONTRADICTION IN THE TWO STATEMENTS BECA USE MODELLING AND ACTING ARE TWO SEPARATE AND DIFFERENT PROFESSIONS. DEDUCTION U/S 80RR IS NOT AVAILABLE TO A MODEL AS A MODEL IS NOT AN AUTHOR, PLAYWRIGHT, ARTIST, MUSICIAN, ACTOR OR SPORTSMAN I N TERMS OF SECTION 80RR. A MODEL IS NOT AN ARTIST BECAUSE ARTIST AS COMMONLY UNDERSTOOD REFERS TO A MUSICIAN, PAINTER, SINGER OR SIMILAR PROFESSIONS. THEREFORE, THE ASSESSEE IS NOT ENTITL ED TO DEDUCTION U/S 80RR BECAUSE HIS TAX AUDIT REPORT STATES HIS PROFES SION TO BE MODELLING. (6) ANOTHER IMPORTANT ASPECT IS THAT THE ASSESSES TIME IS OVERWHELMINGLY SPENT ON CRICKET AND NOT ON ACTING. THE AGREEMENTS WITH THE ABOVE COMPANIES SHOW THAT THE ASSESSEE IS REQUIRED TO SPE ND JUST 1 OR 2 DAYS IN A YEAR, IN THESE ACTIVITIES. THE REMAININ G TIME WOULD BE SPENT ON CRICKET. THIS SHOWS THAT THESE ACTIVITIES ARE PERIPHERAL TO HIS PROFESSION OF PLAYING CRICKET. (7) THE AGREEMENTS ALL CONTAIN AN IMPORTANT CLAUSE SHOW ING THAT THEY WOULD BE TERMINATED IF THE ASSESSEE WAS TO STOP PLA YING CRICKET IS OF THE ESSENCE AND RIGHTLY SO. WITH DUE RESPECT, SACH IN IS SACHIN, BECAUSE HE IS A CRICKETER AND NOT BECAUSE HE IS AN ACTOR. 3. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE, THE ASSESSING REJECTED THE CLAIM OF DEDUCTION U/S 80RR ON THE GROUND THAT THE ASSESSEE IS A PROFESSIONAL CRICKETER. FOR A PERSON TO HAVE SECOND PROFESSION AS AN ACTOR, THE SECOND PROFESSION OF ACTING SHOULD BE INDEPENDENT OF HIS MAIN PROFESSION. IN THE INSTANT CASE, THE ASSESSEE DOES NOT HAVE ANY INDEPENDENT PROFESSION AND INCOME FROM ACTING BY EN DORSING ANY PRODUCTS IN ADVERTISEMENTS THE ASSESSEE DOES NOT BECOME A PE RSON WHOSE PROFESSION 9 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR IS ACTING. FURTHER THE INCOME FROM MODELLING/ACTIN G AND OTHER ACTIVITIES RELATING TO ADVERTISEMENT ETC. DOES NOT AMOUNT TO I NCOME DERIVED FROM THE EXERCISE OF HIS PROFESSION AS CRICKETER. ACCORDING TO THE A.O. THE INCOME FROM PRODUCT ENDORSEMENT MAY AT BEST BE CLAIMED AS ATTRIBUTABLE TO THE PROFESSION OF CRICKET BUT THE EXPRESSION DERIVED FR OM HAS A NARROWER CONNOTATION THAN THE EXPRESSION ATTRIBUTABLE TO. THE IMMEDIATE AND EFFECTIVE SOURCE OF THE ABOVE INCOME IS ADVERTISEME NTS AND THIS INCOME IS NOT DERIVED FROM PLAYING CRICKET. IT DOES NOT HAVE A DIRECT OR IMMEDIATE NEXUS WITH THE PROFESSION OF PLAYING CRICKET. HE AC CORDINGLY HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80RR AMOU NTING TO ` 1,77,69,363/-. 4. BEFORE THE CIT(A), IT WAS SUBMITTED THAT SINCE THE SAID INCOME HAS BEEN DERIVED BY THE ASSESSEE FROM THE EXERCISE OF HIS PROFESSION AS THAT OF AN ACTOR AND HAS BEEN RECEIVED IN CONVERTIBLE FOR EIGN EXCHANGE FROM A NON- RESIDENT, THEREFORE, THE ASSESSEE IS ENTITLED TO D EDUCTION U/S 80RR OF THE ACT. IT WAS SUBMITTED THAT THE CONDITION WHICH NEE DS TO BE SATISFIED FOR BEING ENTITLED TO THE DEDUCTION U/S 80R ARE; I) THE ASSESSEE MUST BE RESIDENT INDIVIDUAL IN INDIA II) THE INDIVIDUAL MUST EITHER BE AN AUTHOR, PLAYWR IGHT, MUSICIAN, ACTOR, OR SPORTSMAN INCLUDING AN ATHLETE; III) THE INCOME MUST BE DERIVED BY HIM IN THE EXERC ISE OF HIS PROFESSION; IV) THE INCOME MUST BE BROUGHT INTO IN INDIA IN CON VERTIBLE FOREIGN EXCHANGE WITHIN THE PRESCRIBED PERIOD. 4.1 IT WAS SUBMITTED THAT THE SAID INCOME HAS BEEN DERIVED BY THE ASSESSEE FOR ACTING/MODELLING IN VARIOUS TV COMMERC IALS; THEREFORE, HE SHOULD BE CONSIDERED AS AN ACTOR FOR THE PURPOSE OF SEC. 80RR OF THE ACT. SINCE THE AMOUNT HAS BEEN RECEIVED IN FOREIGN EX CHANGE AND BROUGHT TO INDIA IN CONVERTIBLE FOREIGN EXCHANGE, ALL THE COND ITIONS U/S 80RR HAVE BEEN SATISFIED AND HE SHOULD BE ENTITLED TO THE DE DUCTION. THE DICTIONARY 10 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR MEANING OF THE WORD ACTOR WAS BROUGHT TO THE NOTI CE OF THE CIT(A). IT WAS ALSO ARGUED THAT THE ASSESSEES PERFORMANCE IN THE TV COMMERCIALS PARTAKES THE CHARACTER OF ACTING AND THEREFORE, HE SHOULD BE CONSIDERED AS AN ACTOR FOR THE PURPOSE OF SEC 80RR OF THE ACT. 4.2 ALTERNATIVELY, IT WAS SUBMITTED THAT HE SHOULD BE CONSIDERED AS AN ARTIST FOR THE PURPOSE OF SEC. 80RR. IT WAS ARGU ED THAT THE EXPRESSION ARTIST SHOULD BE CONSTRUED WIDELY AND FOR THIS PU RPOSE THE ASSESSEE SOUGHT TO RELY ON THE VARIOUS DICTIONARY MEANING OF THIS T ERM. IT WAS SUBMITTED THAT ON AN OVERALL, CONJOINT AND CUMULATIVE READING AND SURVEY OF THE ABOVEMENTIONED MEANINGS OF THE TERMS ARTIST AND THE CONNECTED WORDS PUBLIC PERFORMER/PERFORMANCE/PERFORM/PERFORMER AN D ENTERTAINMENT READ SIMULTANEOUSLY WITH THE SEVERAL CLAUSES OF THE ENDO RSEMENT AGREEMENTS SET OUT HEREINBEFORE, IT CAN BE IRRESISTIBLY AND INESCA PABLY DEDUCED THAT THE ALTERNATIVE AND PROTECTIVE ARGUMENTS OF THE ASSESSE E REGARDING HIS BEING AN ARTIST ARE LEGALLY SUPPORTABLE, VALID AND MAINTAI NABLE. 4.3 IT WAS FURTHER SUBMITTED THAT THE DEDUCTION U/S 80RR HAS BEEN ALLOWED BY THE DEPARTMENT IN THE CASE OF THE ASSESS EE FROM ASSESSMENT YEAR 1994-95 UP TO 2002-03 AND THIS IS THE FIRST YEAR IN WHICH IT HAS BEEN DISPUTED BY THE ASSESSING OFFICER. IT WAS ALSO POI NTED OUT THAT SOME OF THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) AND AS S UCH THE ISSUE WAS DELIBERATED AND DISCUSSED BEFORE HERE IN THE PAST. ACCORDINGLY, IT WAS SUBMITTED THAT THE DEPARTMENT OUGHT TO TAKE A CONSI STENT STAND AND SHOULD NOT MERELY ON THE BASIS OF SURMISES AND CONJECTURES DEVIATE FROM THE STAND TAKEN BY IT IN THE PAST. CIRCULARS ISSUED BY THE CB DT FROM TIME TO TIME WERE ALSO BROUGHT TO THE NOTICE OF THE CIT(A). IT WAS SU BMITTED THAT ALTHOUGH THE ASSESSEE IS A LEADING CRICKETER BUT ONE CANNOT DENY THAT THE DIRECT SOURCE OF THE INCOME WAS FROM THE ASSESSEE ACTING IN THESE TV COMMERCIALS/FILMS. 11 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 4.4 AS REGARDS THE CONTENTION OF THE ASSESSING OFFI CER THAT THE SAID INCOME FROM MODELLING/ACTING IS ATTRIBUTABLE TO HIS BEING A LEADING CRICKETER, BUT ARE NOT DERIVED FROM THIS PROFESSI ON, IT WAS SUBMITTED THAT THE WORDS USED IN SEC. 80RR ARE DERIVED BY HIM IN THE EXERCISE OF HIS PROFESSION AND NOT DERIVED FROM THE PROFESSION. IT WAS SUBMITTED THAT ENDORSEMENT EARNINGS CANNOT BE THROWN OUT OF THE SE C. 80RR ELIGIBILITY NET. VARIOUS DECISIONS INCLUDING THE DECISION OF THE TRI BUNAL IN THE CASE OF AMITABH BACHCHAN VS DCIT REPORTED IN 12 SOT 95 WERE CITED BEFORE HIM AND IT WAS SUBMITTED THAT THE SAID INCOME DERIVED B Y HIM WAS ENTITLED TO SEC. 80RR. 4.5. HOWEVER, THE CIT(A) WAS NOT CONVINCED WITH THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE AND UPHELD THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER: 6. I HAVE GONE THROUGH VARIOUS SUBMISSIONS MADE BY THE APPELLANT AS WELL AS THE FINDINGS OF THE ASSESSING OFFICER. ON GOING THROUGH THE PROVISIONS OF SEC. 80RR OF THE IT ACT, THE CONDITIONS WHICH NEED TO BE SATISFIED IN THE PRESENT CONTEXT ARE : (A) AN INDIVIDUAL, RESIDENT IN INDIA; (B) BEING AN AUTHOR, PLAYWRIGHT, ARTIST [MUSICIAN, ACTO R OR SPORTSMAN (INCLUDING AN ATHLETE) (C) INCLUDES ANY INCOME DERIVED BY HIM IN EXERCISE OF H IS PROFESSION; (D) AMOUNT RECEIVED FROM THE GOVERNMENT OF A FOREIGN ST ATE OR ANY PERSON NOT RESIDING IN INDIA. (E) INCOME MUST BE BROUGHT TO INDIA IN CONVERTIBLE FORE IGN EXCHANGE WITHIN SPECIFIED TIME. IN THE PRESENT CASE, THE CONDITIONS WHICH ARE IN DISPUTE RELATE TO (B) & (C) ABOVE. 6.1 THE AO HAS ELABORATED ON THE NATURE OF INCOME W HICH HAS BEEN CLAIMED TO BE EXEMPT BY THE APPELLANT U/S 80RR OF THE I.T. ACT, 1961. IN THIS REGARD, THE AO HAS ANALYSED VARIOUS AGREEMENTS WITH M/S WOR LD TEL INDIA, M/S WORLD TEL. INC., M/S VISA INTERNATIONAL, M/S ESPN, M/S STAR SPORT AND M/S PEPSI CO. INC. THROUGH THE ANALYSIS OF THESE AGREEM ENTS THE AO HAS ATTEMPTED TO DISPROVE THAT THE RECEIPTS FROM SUCH COMPANIES A RE NOT FULFILLING THE CONDITION INCOME DERIVED BY HIM IN EXERCISE OF HIS PROFESSION. THE ASSESSING OFFICER HAS ALSO ELABORATED AT LENGTH AS TO HOW THE RECEIPTS ARE ALSO NOT DERIVED BY THE ASSESSEE BY BEING AN ACTOR OR AN ARTIST. 12 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR IN MY OPINION THERE ARE TWO IMPORTANT ISSUES WHICH NEED TO BE ADDRESSED FOR ARRIVING AT A CONCLUSION REGARDING TH E CLAIM MADE BY THE APPELLANT. (I) THE FIRST IMPORTANT CONDITION WHICH NEEDS TO BE EXA MINED RELATES TO WHETHER THE INCOME DERIVED BY THE APPELLANT WAS IN COME DERIVED IN EXERCISE OF HIS PROFESSION. THE IMPORTANT QUESTIO N WHICH ARISES IS, WHAT IS THE PROFESSION OF THE APPELLANT? WHETHER TH E INCOME WHICH HAS BEEN CLAIMED TO BE EXEMPT U/S 80RR IS OUT OF HIS PR OFESSION OR NOT? (II) THE SECOND IMPORTANT ISSUE AS CLAIMED BY THE APPELL ANT AS AN ALTERNATIVE ARGUMENT IS THAT THE INCOME IS OUT OF T HE PROFESSION OF AN ACTOR OR AN ARTIST WHICH WILL ALSO ENTITLED HIM FOR THE BENEFIT. 6.2 COMING TO THE FIRST ISSUE, ON ANALYSING THE FAC TS AND CIRCUMSTANCES RELATING TO THE APPELLANT, IT IS ABUNDANTLY CLEAR T HAT HE IS PRIMARILY INVOLVED IN PLAYING CRICKET AND IRRESPECTIVE OF THE FACT WHETHE R HE IS A PROFESSIONAL OR NOT, IT CAN NOT BE DISPUTED THAT HIS PROFESSION IS PLAY ING CRICKET. WHENEVER HE WOULD UNDERTAKE OTHER ACTIVITIES LIKE T.V. COMMERCI ALS AND SHOWS FOR SPONSORING PRODUCTS OF VARIOUS COMPANIES FOR WHICH HE IS PAID, IT WOULD ONLY AMOUNT TO SUBSIDIARY ACTIVITIES WHICH ARE NOT DIREC TLY RELATABLE TO HIS ACTIVITY OF PLAYING CRICKET. THESE ANCILLARY ACTIVITIES CAN NOT BE TREATED TO BE OUT OF THE PROFESSION OF THE APPELLANT. BY APPEARING IN SUC H COMMERCIALS OR EVENTS, NO ELEMENT OR EXPERTISE RELATING TO HIS PROFESSION IS BEING USED. IF SUCH A LOGIC WAS EXTENDED THEN, ANY INCOME EARNED BY THE PERSON, HOWEVER EARNED WOULD BE EXEMPT. IT WAS WITH THE SPECIFIC INTENT OF ONLY ALLOWING BENEFIT FOR THE INCOME DERIVED BY HIM IN EXERCISE OF HIS PROFESSION , IN THE INSTANT CASE, OF PLAYING CRICKET THAT THE SECTION 80RR CLAIM CAN BE MADE. IN THE PRESENT CASE PLAYING CRICKET CAN BE CONSIDERED FOR EXEMPTION U/S 80RR OF THE I.T. ACT SINCE SUCH SUBSIDIARY ACTIVITIES OF THE APPELLANT ARE NOT COVERED AND THE CONDITIONS FOR CLAIMING RELIEF U/S 80RR IS NOT BEING FULFILLED . WHILE APPEARING FOR THE TV COMMERCIALS AND SIMILAR SUCH ACTIVITIES, IT WOULD NOT BE LOGICAL AND PROPER TO CONSIDER THAT BE ING AN ACTOR OR ARTIST IS THE SECOND PROFESSION OF THE APPELLANT. THERE IS N O DOUBT IN MY MIND THAT THE PROFESSION OF THE APPELLANT IS ONLY PLAYING CRICKE T AND OTHER ACTIVITIES ARE ONLY SUBSIDIARY IN NATURE. IT HAS ALSO BEEN CLEARL Y DISCUSSED BY THE A.O. THAT THE AGREEMENTS WHICH THE APPELLANT HAS ENTERED INTO ARE DIRECTLY RELATED ON THE CONDITION THAT HE SHOULD CONTINUE TO PLAY CRICK ET. HOWEVER, HE IS NOT BEING PAID FOR ANY ACTIVITY RELATED TO PLAYING CRICKET. TO SUM UP, SINCE THE PROFESSION OF THE APPELLANT IS ONLY ONE, I.E. PLAYING CRICKET AND THE INCOME DERIVED FROM OTHER SUBSIDIAR Y ACTIVITIES CANNOT BE CONSIDERED TO BE INCOME DERIVED BY HIM IN THE EXER CISE OF HIS PROFESSION. FOR ADDRESSING THE SECOND ISSUE RELATING TO THE APP ELLANT BEING AN ACTOR OR AN ARTIST AS CLAIMED BY HIM, AS AN ALT ERNATIVE ARGUMENT, THE 13 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR APPELLANT HAS RESORTED TO VARIOUS DICTIONARY MEANIN G AS WELL AS COURT DECISIONS TO SUPPORT HIS CLAIM U/S 80RR OF THE I.T. ACT, 1961. THE APPELLANT HAS CLAIMED TO BE AN ACTOR AS AN AL TERNATIVE PROFESSION ON THE GROUNDS OF APPEARING IN VARIOUS COMMERCIAL S, ADVERTISEMENTS ETC. IF WE EXAMINE THE MATTER IN A LITTLE MORE DEPTH IT WIL L BE OBSERVED THAT THE APPELLANT IS BEING PAID NOT FOR HIS ACTIVITIES AS A N ACTOR OR HIS PERFORMANCE AS AN ARTIST. THE NATURE AND QUALITY OF HIS ACTI NG OR PERFORMANCE AS AN ARTIST BY ITSELF WOULD NEVER HAVE RESULTED IN THE C ONTRACTS AND PAYMENTS MADE OUT TO HIM. THE APPELLANT IS A KNOWN PUBLIC PERSON ALITY WHOSE PROFESSION IS PLAYING CRICKET. IT IS DIFFICULT TO ACCEPT THAT A PERSON HAS SEVERAL PROFESSIONS. SUCH A SITUATION HAS NOT BEEN ENVISAGED IN THE INCO ME TAX ACT, OTHERWISE IT WOULD HAVE BEEN INCORPORATED IN THE ACT AS PROFESS IONS AND NOT PROFESSION, THE APPELLANT HAS IN FACT NOT BEEN ACTING OR PERF ORMING AS AN ARTIST IN ANY OF THE COMMERCIALS OR SPONSORSHIP EVENTS IN THE SPIRIT OF THE TERMS. WHAT HE HAS ACTUALLY BEEN DOING IS ONLY APPEARING AT THESE EVENTS AND COMMERCIALS. SUCH ACTIVITIES AS EARLIER DISCUSSED ARE AT BEST ANCILLARY OR SUBSIDIARY ACTIVITIES THROUGH WHICH THE APPELLANT HAS EARNED INCOME. THE CRUCIAL FACTOR IS HIS APPEARING IN SUCH ADVERTISE MENTS AND COMMERCIALS WHICH IS THE SOLE IMPORTANT FACTOR FOR HIS INCOME. HIS NATURE OF PERFORMANCE AS AN ACTOR OR AN ARTIST DOES NOT ATTRACT THE INTER ESTED PARTIES FOR PAYING HIM SUBSTANTIAL AMOUNTS OF MONEY. THE VERY FACT THAT T HE APPELLANT IN THE ADVERTISEMENT OR THE COMMERCIALS ATTRACTS THE ATTEN TION OF THE VIEWERS AND EVEN IF HIS PERFORMANCE IS MOST AVERAGE, THE PAYMEN T IS MADE ONLY ON ACCOUNT OF IS APPEARING AND NOT BY VIRTUE OF HIM BEING AN ACTOR OR ARTIST. THE CONTENTION OF THE APPELLANT WITH REGARD TO BEIN G AN ACTOR OR ARTIST DOES NOT APPEAR TO BE LOGICAL. THE ACTIVITY OF AP PEARING IN SUCH ADVERTISEMENT OR COMMERCIAL ETC. CANNOT BE EQUATED WITH THAT OF AN ACTOR OR ARTIST. THIS ACTIVITY IS SUBSIDIARY ACTIVITY OF THE APPELLANT AND IS ALSO NOT DIRECTLY RELATED TO HIS PROFESSION OF PLAYING CRICK ET. ANY SUBSIDIARY ACTIVITIES WHICH ARE NOT DIRECTLY RELATED TO THE SPECIFIC PROF ESSION CANNOT BE ALLOWED U/S 80RR OF THE I.T. ACT. ON CAREFUL EXAMINATION OF THE VARIOUS ISSUES AND FA CTS OF THE CASE, SPECIFIC PROVISION OF LAW AS WELL AS THE FINDINGS O F THE AO AND THE SUBMISSIONS OF THE AR, I AM OF THE CONSIDERED VIEW THAT THE CON DITIONS LAID DOWN FOR CLAIMING BENEFIT U/S 80RR ARE NOT FULFILLED IN THIS CASE. I UPHOLD THE DISALLOWANCE U/S 80RR MADE BY THE A.O. IN THIS CASE . THE GROUND OF THE APPELLANT IS DISMISSED AND THE DI SALLOWANCE UPHELD. 5. AGGRIEVED BY SUCH ORDER OF THE CIT(A), THE ASSES SEE IS IN APPEAL HERE BEFORE US. 14 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 6. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE DERIVED INCOME FROM SALARY, INCOME FROM OTHER SOURCES AS A CRICKETER AND INCOME FROM MODELLING/SPONSORSHIPS SHOWN AS INCOME FROM B USINESS/PROFESSION. HE SUBMITTED THAT THE ASSESSEE IS NOT A PROFESSIONA L CRICKETER. THE DEDUCTION U/S 80RR HAS BEEN ALLOWED IN THE PAST U/S 143(3) ASSESSMENTS AND U/S 143(1) ASSESSMENT AND ONLY IN THE AY 2003-0 4, THE ASSESSING OFFICER VISITED THE PROVISIONS OF SEC. 80RR WHICH, HE SHOULD NOT HAVE DONE. HE SUBMITTED THAT FOR THE AY 1997-98, 98-99 AND 99- 00, BENEFIT OF DEDUCTION U/S 80RR HAS BEEN ALLOWED. THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS MENTIONED IN THE PROVISIONS OF SEC. 80RR . HE SUBMITTED THAT THE ONLY PROFESSION OF THE ASSESSEE IS ACTING/MODELLIN G. REFERRING TO PAGE 8 OF THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HA S HELD THAT THE ASSESSEE IS A PROFESSIONAL CRICKETER, HE SUBMITTED THAT THE TRIBUNAL IN ASSESSEES OWN CASE HAS HELD THAT THE ASSESSEE IS NOT A PROFESSION AL CRICKETER IN VIEW OF THE CBDT CIRCULAR. THE ASSESSEE IS NOT AWARE AS TO WHET HER THE DEPARTMENT HAS GONE TO THE HIGH COURT OR NOT. 6.1 THE LD COUNSEL FOR THE ASSESSEE DREW THE ATTENT ION OF THE BENCH TO THE LANGUAGE USED IN THE PROVISIONS OF SEC. 80QQA, 80R AND 80RR. REFERRING TO PROVISIONS OF SEC.80RR, HE SUBMITTED THAT THERE ARE FIVE INGREDIENTS TO CLAIM THE DEDUCTION:- (I) ACTING AS A PROFESSION; (II) SO URCE OF INCOME; (III) SOURCE OF REMITTANCE; (IV) CAPACITY AND (V) ACTIVITY. 6.2 REFERRING TO THE DECISION OF THE TRIBUNAL IN TH E CASE OF AMITABH BACHCHAN (SUPRA), HE SUBMITTED THAT THE TRIBUNAL IN THAT CASE HAS HELD THAT THE PAYMENT RECEIVED BY MR. AMITABH BACHCHAN FROM K BC PROGRAMME FOR ACTING AS AN ANCHOR FOR THE SAID SHOW IS INCOME DER IVED BY HIM AS AN ARTIST AND DEDUCTION U/S 80RR WAS ACCORDINGLY ALLOWED IN R ESPECT OF SUCH INCOME. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CA SE OF SHRI SHAHRUKH KHAN VIDE ITA NO.3894/MUM/2000 AND OTHER APPEALS VIDE OR DER DATED 19.6.2008 THE LD COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO PARA 13 15 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR (PAGE 9) OF THE ORDER OF THE TRIBUNAL WHEREIN THE T RIBUNAL HAS ALLOWED THE DEDUCTION U/S 80RR ON AMOUNTS RECEIVED BY MR. SHAHR UKH KHAN FOR ALLOWING HIS NAME TO BE USED FOR A PRODUCT FOR WHIC H HE HAD TO ATTEND PHOTO SESSIONS, LAUNCH SESSIONS IN MEDIA AND HIS APPEARAN CE FOR THE PRODUCTS. THE REVENUES APPEAL IN THE SAID CASE WAS DISMISSED BY THE TRIBUNAL. 6.3 REFERRING TO THE DECISION OF THE HONBE BOMBAY HIGH COURT IN THE CASE OF CIT VS TARUN R TAHILIANI REPORTED IN 232 CTR 2 89 , HE SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT THE WORK OF A DRESS DESIGNER INVOLVES A HIGH DEGREE OF IMAGINATION, CREATIVITY AND SKILL AN D, THEREFORE, A DRESS DESIGNER IS AN ARTIST FOR THE PURPOSES OF SEC. 8RR. 6.4 REGARDING THE ALLEGATION OF THE ASSESSING OFFI CER THAT IF THE ASSESSEE HAD NOT BEEN A CRICKETER, NO PERSON WOULD HAVE APPO INTED HIM, HE SUBMITTED THAT IF THE ASSESSEE IS AN ARTIST BECAUSE OF THE EXERCISE OF HIS PROFESSION AS A CRICKETER THEN ALSO THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80RR. HE SUBMITTED THAT THE PROVISIONS OF SEC. 80R R DO NOT SPEAK OF CAPACITY OF A PERSON AND IT IS ONLY THERE IN THE PR OVISIONS OF SEC. 80R. THEREFORE, THE ASSESSING OFFICER CANNOT IMPORT THAT LANGUAGE HERE AND THEREFORE, THE ASSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80RR. AS REGARDS THE OBSERVATION OF THE CIT(A) THAT A PERSON CANNOT HAVE MORE THAN ONE PROFESSION SINCE SUCH A SITUATION HAS NOT BEEN ENVISAGED BY THE INCOME- TAX ACT, THE LD. COUNSEL FOR THE ASSESSEE GIVING A NUMBER OF EXAMPLES SUBMITTED THAT A PERSON CAN HAVE MORE THAN ONE PROF ESSION. HE ACCORDINGLY SUBMITTED THAT THE ASSESSEE IS ENTITLED TO THE DEDU CTION U/S 80RR ON THE DISPUTED INCOME BOTH AS AN ACTOR OR AN ARTIST. 6.5 THE LD DR ON THE OTHER HAND WHILE SUPPORTING TH E ORDER OF THE CIT(A) SUBMITTED THAT THE ONLY DISPUTE IN THE IMPUGNED GRO UND IS REGARDING THE NATURE OF INCOME I.E. WHETHER THE INCOME IS DERIVED FROM EXERCISE OF HIS PROFESSION AS AN ACTOR, ARTIST OR A PLAYER. HE SUBM ITTED THAT THE USE OF WORD 16 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR EXERCISE IN THE PHRASE EXERCISE OF HIS PROFESSIO N SUGGESTS THAT ACTIVITY OF SPORTS/ACTING/ARTIST ETC. MUST BE PUT TO USE TO EAR N THE INCOME BEING CLAIMED AS DEDUCTION U/S 80RR. HE SUBMITTED THAT CI RCULAR NO. 22 DTD. 17.7.69 HAS EXPLAINED THE PURPOSE OF INTRODUCING SE CTION 80RR. THE PROVISION IS DESIGNED TO ENCOURAGE SUCCESSFUL ARTI ST, ACTORS ETC. IN OUR COUNTRY TO PROJECT THEIR ACTIVITIES OUTSIDE INDIA W ITH A VIEW TO CONTRIBUTING GREATER UNDERSTANDING OF OUR COUNTRY AND ITS CULTUR E ABROAD. THIS SUGGESTS THAT THE INCOME YIELDING ACTIVITY SHOULD BE RENDERE D IN SUCH A MANNER THAT IT CONTRIBUTES TO THE BETTER UNDERSTANDING OF OUR C OUNTRY AND ITS CULTURE ABROAD. HE SUBMITTED THAT THE USE OF WORD PROFESSI ON IN THE PHRASE EXERCISE OF HIS PROFESSION FURTHER SUGGESTS THAT ACTIVITY OF SPORTS/ACTING/ARTIST ETC. SHOULD BE IN THE NATURE O F PROFESSION AND NOT AS A CASUAL OR INCIDENTAL ACTIVITY. HE SUBMITTED THAT TH E USE OF WORDS DERIVED SUGGEST THAT THE NEXUS BETWEEN ACTIVITY AND INCOME SHOULD BE DIRECT AND 1 ST LEVEL OPERATIONAL INCOME FROM ACTIVITY OF SPORTS/AC TING/ARTIST AND NOT THE INCIDENTAL OR INDIRECT ONE. THE LD. D.R. SUBMITTED THAT THE USE OF WORDS SUCH INCOME MEANS THAT IT IS ONLY THE INCOME WHIC H IS DERIVED BY EXERCISE OF PROFESSION OF SPORTS/ACTING/ARTIST HAVING DIRECT NEXUS ONLY TO BE ELIGIBLE FOR DEDUCTION U/S 80RR. 6.6. THE LD. D.R. SUBMITTED THAT THE ASSESSEE CLAIM S THAT HE IS NOT A PROFESSIONAL CRICKETER. HE PLAYS FOR HIS EMPLOYER AND BCCI WITH WHICH IT HAS CONTRACT FOR WHICH HE IS PAID BY BCCI. THE ASSE SSEE CLAIMS THE EXEMPTION OF AWARDS AS PER CIRCULAR NO. 447 OF CBDT PROCLAIMING HIMSELF TO BE A NON-PROFESSIONAL CRICKETER AND ITAT IN ITS EAR LIER ORDERS HAVE ALLOWED THE EXEMPTION HOLDING THAT THE ASSESSEE IS NOT A PR OFESSIONAL CRICKETER. THE INCOME FROM PLAYING CRICKET HAS BEEN SHOWN BY ASSES SEE ITSELF AS INCOME FROM OTHER SOURCES FURTHER PROVES THAT THE ASSESSE E HIMSELF DOES NOT CLAIM TO BE A PROFESSIONAL CRICKETER AND HENCE CANNOT BE SAID THAT HE EXERCISES THE PROFESSION OF CRICKET. 17 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 6.7. HE SUBMITTED THAT THE INCOME FROM ENDORSEMENTS RELATE TO WIDE VARIETY OF SERVICES RENDERED BY ASSESSEE AS PER THE AGREEMENTS WITH WORLD TEL INC., PEPSI CO., VISA ETC. SOME OF WHICH INCLUD E ALLOWING THE USE OF HIS NAME, PHOTO OR VOICE SAMPLES, AUTOGRAPHS ON BOOKLET S AND DIARIES ON SACHINS STATISTICS, PRODUCT SPOKESMAN, CORPORATE M EETINGS, MEDIA APPEARANCES, INTERNET CHATS, USE OF SPECIFIC CLOTHI NG & FOOTWEAR, ENDORSEMENT OF COMMERCIAL ACTIVITIES SUCH AS RESTAU RANT, CAFES ETC. SIGNATURES ON CERTIFICATES OF HONOUR OR ACHIEVEMENT , TO APPEAR IN AD FILMS, PERSONALLY DRINK PEPSI AND PROMOTE THE PEPSI AT PUB LIC AND PERSONAL APPEARANCES AND FUNCTIONS AND AT HOME. 6.8. HE SUBMITTED THAT THE AMOUNT TO BE RECEIVED AS PER THE AGREEMENTS IS A COMPOSITE ONE FOR ALL KINDS OF ACTIVITIES/SERVICE S RENDERED BY ASSESEE AND THERE IS NO BIFURCATION OF AMOUNTS PERTAINING TO AN Y PARTICULAR ACTIVITY. 6.9. HE SUBMITTED THAT A PERUSAL OF THE AGREEMENTS SHOW THAT MOSTLY THE ENDORSEMENTS ARE BY USE OF IMAGE/PHOTO OR SIGNATURE S/LOGOS ETC. WHERE PERSONAL PHYSICAL PRESENCE AND OCCUPATION OF TIME O F ASSESSEE IS NOT REQUIRED. WHEREVER THE TIME AND PHYSICAL PRESENCE IS REQUIRED, IT IS MENTIONED SPECIFICALLY WHICH IS RESTRICTED TO ONLY FEW OCCASIONS AND DAYS IN A YEAR WHICH IS FOR MAKING AD FILMS OR ATTENDING PU BLIC FUNCTIONS/CORPORATE MEETINGS. SO CONSIDERING THE TOTAL TIME SPENT BY A SSESSEE IN CRICKET, THE TIME SPENT IN PHYSICALLY APPEARING IN TV AD FILMS I S VERY MINISCULE SUCH AS HE HAS TO MODEL ONLY ONCE IN A YEAR FOR PEPSI CO AN D BE AVAILABLE ONLY AT 3 OCCASIONS IN A YEAR FOR EVENTS ORGANISED BY VISA AN D EACH APPEARANCE NOT BEING MORE THAN 2 HOURS. HENCE BY THE YARDSTICKS O F TIME AND EFFORT ALSO, THE MAJOR PART OF ASSESSEES CONTRIBUTION IS TOWARD S PLAYING CRICKET. FURTHER THERE IS NEITHER SKILLED PERFORMANCE NOR ANY CREATI VITY AS AN ACTOR OR ARTIST BY APPEARING IN AD FILMS WHILE ENDORSING A PRODUCT. THE SERVICES PROVIDED BY THE ASSESSEE AS PER ENDORSEMENT AGREEMENTS DO NO T INVOLVE USE OF ANY ACTIVITY OR ROLE AS AN ACTOR/ARTIST. 18 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 6.10 REFERRING TO THE DECISION OF THE HONBLE BOM BAY HIGH COURT IN THE CASE OF CIT VS LALLUBHAI NAGARDAS & SON REPORTED IN 204 ITR 93 HE SUBMITTED THAT THE HONBLE HIGH COURT IN THE SAID DECISION HAS HELD THAT A SHARE BROKER DOES NOT COME WITHIN THE DEFINITION OF PROFESSION U/S 2(36). IT WAS HELD IN THE SAID DECISION THAT PROFESSION INVOL VES LABOUR, SKILL, EDUCATION AND SPECIAL KNOWLEDGE. 6.11. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF HARSHA BHOGLE VS ITO REPORTED IN 86 ITD 714 (MUM), HE SUBMITTED T HAT THE ASSESSEE WHO WAS A PRESENTER, COMMENTATOR AND PROGRAMME COMPERE OF SPORTS ON TELEVISION WAS HELD TO BE NOT AN ARTIST AND ACCOR DINGLY HAS HELD TO BE NOT ENTITLED TO DEDUCTION U/S 80RR. 6.12. HE SUBMITTED THAT THE DECISIONS OF THE TRIBU NAL IN THE CASE OF AMITABH BACHCHAN (SUPRA) AND IN THE CASE OF SHRI SHAHRUKH KHAN (SUPRA) AS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE AR E QUITE DIFFERENT BECAUSE THEY ARE BASICALLY ACTORS. HERE THE ASSESSEE IS NOT AN ACTOR AND IS A CRICKETER. THEREFORE, THE BENEFIT OF DEDUCTION U/S 80RR CANNOT BE GRANTED TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE IS AL SO NOT ENTITLED TO BE CALLED AS AN ARTIST FOR GETTING THE DEDUCTION U/S 8 0RR. 6.13. AS REGARDS THE CONTENTION OF THE LD COUNSEL FOR THE ASSESSEE THAT BENEFIT OF DEDUCTION U/S 80RR WAS PROVIDED IN THE P AST AND THEREFORE, RULE OF CONSISTENCY SHOULD BE APPLICABLE, HE SUBMITTED T HAT PRINCIPLES OF RESJUDICATA DO NOT APPLY TO INCOME TAX PROCEEDINGS AND EACH ASSESSMENT YEAR IS DISTINCT AND SEPARATE. THE A.O. IS NOT BAR RED FROM TAKING A DIFFERENT VIEW THAN THE VIEW TAKEN ALREADY BY AN ASSESSING OF FICER. HE SUBMITTED THAT HERE IT IS A QUESTION OF LAW THEREFORE, RULE OF CON SISTENCY CANNOT BE APPLICABLE AS CLAIMED BY THE ASSESSEE AND THEREFORE , THE SAME SHOULD BE GIVEN A GO BYE. FOR THIS PROPOSITION, HE RELIED ON A NUMBER OF DECISIONS. 19 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 6.14. AS REGARDS THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE THAT A PERSON CAN HAVE MORE THAN ONE PROFESSION, HE AGREED ON THIS ISSUE AND SUBMITTED THAT A PERSON CAN HAVE MORE THAN ONE PROFESSION. HOWEVER, THE QUESTION HERE IS DEDUCTION U/S 80RR AND NECESSA RY CONDITIONS MUST BE FULFILLED. 6.15. AS REGARDS THE OBJECTION OF THE LD COUNSEL F OR THE ASSESSEE THAT LANGUAGE IN THE PROVISIONS OF SEC. 80RR ARE DIFFERE NT FROM THE PROVISIONS OF SEC. 80 Q, 80QQA AND 80R, HE SUBMITTED THAT THE AS SESSING OFFICER HAS NOT USED THE WORD IN HIS CAPACITY AS CRICKETER. 6.16 AS REGARDS THE DECISIONS RELIED UPON BY THE LD COUNSEL FOR THE ASSESSEE, HE SUBMITTED THAT THOSE DECISIONS ARE DI STINGUISHABLE ON FACTS AND ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE; THEREFORE, THE ASSESSEE IS NOT ENTITLED TO GET THE BENEFIT OF DEDU CTION UNDER THE PROVISIONS OF SEC. 80RR. HE SUBMITTED THAT IN THE INSTANT CAS E THERE IS AN IDENTITY CRISIS. THE ASSESSEE IS NOT AN ACTOR/ARTIST/PROFESS IONAL CRICKETER BUT HE IS ONLY A CRICKETER; THEREFORE, WHEN THE ASSESSEE HIMS ELF IS NOT SURE AS TO WHETHER HE IS A PROFESSIONAL CRICKETER/AN ARTIST/AN ACTOR, THEREFORE, DEDUCTION U/S 80RR SHOULD NOT BE ALLOWED TO THE ASS ESSEE. HE ALSO RELIED ON THE FOLLOWING DECISIONS:- 1. LIBERTY INDIA, 317 ITR 218 (SC) 2. DILIP K. SHETH VS. ITO, 128 TTJ 41 (BOM) 3. CIT VS. LALLUBHAI NAGAR DAS & SONS, 204 ITR 93 (BOM) 6.17 THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOIN DER SUBMITTED THAT THERE IS NO QUESTION OF ANY IDENTITY CRISIS. THE ASSESSEE HAS FULFILLED ALL THE CRITERIA OF BEING AN ACTOR OR AN ARTIST. THE PRIZE MONEY/AWA RD MONEY WAS HELD TO BE EXEMPT AS PER THE CBDT CIRCULAR. SINCE THE PRIZE MO NEY/AWARD MONEY HAS BEEN EXEMPTED IN THE CASE OF THE ASSESSEE; THEREFOR E, THE CIRCULAR APPLIES TO THE ASSESSEE THAT HE IS NOT A PROFESSIONAL CRICKETE R. HE SUBMITTED THAT IF THE ASSESSEE IS HELD TO BE A PROFESSIONAL CRICKETER AND IT IS HELD THAT THE INCOME 20 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR FROM MODELLING ETC. IS DUE TO THE ASSESSEE BEING A CRICKETER, THEN ALSO HE IS ENTITLED TO THE DEDUCTION U/S 80RR SINCE THE INCOME IN THAT CASE WILL BE DERIVED FROM THE EXERCISE OF HIS PROFESSION AS A SP ORTSMAN. 6.18. AS REGARDS THE DECISION IN THE CASE OF HARSHA BHOGLE (SUPRA), HE SUBMITTED THAT THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 6.19. AS REGARDS THE DECISION OF THE TRIBUNAL IN TH E CASE OF DILIP K. SHETH VS. CIT (SUPRA) HE SUBMITTED THAT THE SAME IS NOT A PPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE IT WAS HELD THAT TH E INCOME EARNED BY THE ASSESSEE BY EXERCISE OF HIS PROFESSION AS A CHARTER ED ACCOUNTANT WHICH HAS NOTHING TO DO WITH THE EXERCISE OF HIS PROFESSION A S AN AUTHOR WAS NOT ELIGIBLE FOR DEDUCTION U/S 80RR. 6.20. AS REGARDS THE DECISION IN THE CASE OF LALLUB HAI NAGORI & SONS (SUPRA), HE SUBMITTED THAT IN THAT CASE IT WAS HELD THAT ACT IVITY OF SHARE BROKERS DOES NOT AMOUNT TO PROFESSION. HOWEVER, IN THE INSTAN T CASE THE ISSUE IS MODELLING IN AD FILMS AS ACTING OR ARTIST. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE A.O. AND THE CIT(A) AND T HE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF ` 19,92,27,085/- AS GROSS RECEIPTS FROM SPORTS SPON SORSHIP AND ADVERTISEMENTS WHICH INCLUDED AN AMOUNT OF ` 5,92,31,211/- RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE FROM ESPN STAR SPORTS, PEPSICO INC AND VISA. THERE IS ALSO NO DISPUTE TO THE FACT THAT IN THE TA X AUDIT REPORT IN FORM NO. 3CD FILED ALONG WITH RETURN OF INCOME, THE NATURE O F BUSINESS/PROFESSION OF THE ASSESSEE HAS BEEN MENTIONED AS SPORTS SPONSORSH IP/MODELLING. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE CLAIM ED DEDUCTION U/S 80 RR 21 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR AMOUNTING TO ` 2,08,59,707/- ON ACCOUNT OF ABOVE RECEIPT OF ` 5,92,31,211/- ON THE GROUND THAT HE WAS ALLOWED SUC H DEDUCTION IN THE PAST AND THAT THE INCOME DERIVED BY THE ASSESSEE IN RESPECT OF WHICH DEDUCTION U/S 80RR HAS BEEN CLAIMED IS FROM THE EXE RCISE OF HIS PROFESSION AS AN ACTOR. 7.1 WE FIND THE A.O. REJECTED THE CLAIM OF DEDUCT ION U/S 80RR ON THE GROUND THAT THE ASSESSEE IS A PROFESSIONAL CRICKETE R AND THE INCOME FROM MODELLING AND ADVERTISING IS NOT DERIVED FROM THE E XERCISE OF HIS PROFESSION. ACCORDING TO THE A.O., BY ENDORSING ANY PRODUCTS IN ADVERTISEMENTS THE ASSESSEE DOES NOT BECOME A PERSON WHOSE PROFESSION IS ACTING. ACCORDING TO THE A.O. THE INCOME FROM PRODUCT ENDORSEMENT MAY AT BEST BE CLAIMED AS ATTRIBUTABLE TO THE PROFESSION OF CRICKET BUT THE E XPRESSION DERIVED FROM HAS A NARROWER CONNOTATION THAN THE EXPRESSION ATTRIBU TABLE TO. 7.2 WE FIND THE CIT(A) CONFIRMED THE ACTION OF THE A.O. ON THE GROUND THAT BY PROFESSION THE ASSESSEE IS NEITHER AN ACTOR OR AN ARTIST. THE ACTIVITY OF APPEARING IN SUCH ADVERTISEMENT OR COMMERCIAL ETC. CANNOT BE EQUATED WITH THAT OF AN ACTOR OR ARTIST AND THIS ACTIVITY IS SUB SIDIARY ACTIVITY OF THE ASSESSEE AND IS ALSO NOT DIRECTLY RELATED TO HIS PR OFESSION OF PLAYING CRICKET. THEREFORE, ANY SUBSIDIARY ACTIVITY WHICH ARE NOT DI RECTLY RELATED TO THE SPECIFIC PROFESSION CANNOT BE ALLOWED U/S 80RR OF T HE I.T. ACT. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN VIEW OF THE DICTIONARY MEANING OF THE WORDS ACTING AND ARTIST AND IN T HE LIGHT OF THE RATIO OF VARIOUS DECISIONS CITED, THE INCOME FROM MODELLING AND ADVERTISEMENTS SHOULD BE TREATED AS DERIVED FROM THE EXERCISE OF H IS PROFESSION AS AN ACTOR OR AN ARTIST. ACCORDING TO THE LD. COUNSEL FOR T HE ASSESSEE, A PERSON CAN HAVE MORE THAN ONE PROFESSION. 7.3 WE FIND THERE IS NO DISPUTE TO THE FACT THAT T HE ASSESSEE IN THE INSTANT CASE HAS DECLARED INCOME FROM PLAYING CRICK ET AS INCOME FROM OTHER 22 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR SOURCES ON THE GROUND THAT HE IS ONLY A CRICKETER AND IS NOT A PROFESSIONAL CRICKETER. THIS ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND AS ADMITTED BY THE LD. D.R. NOTHIN G WAS BROUGHT TO OUR NOTICE THAT THE REVENUE HAS CHALLENGED THE ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT. 7.4 AS REGARDS THE SUBMISSION OF THE LEARNED COUNSE L FOR THE ASSESSEE THAT THE INCOME FROM MODELLING AND SPONSORSHIP HAS TO BE CONSIDERED EITHER AS ACTOR OR AN ARTIST, WE FIND SIMILAR ISSUE HAD C OME UP BEFORE THE TRIBUNAL IN THE CASE OF MR. AMITACH BACHCHAN VS. DCIT (SUPRA). IN THAT CASE THE PAYMENT RECEIVED BY MR. AMITABH BACHCHAN FOR ACTING AS AN ANCHOR FOR A TV PROGRAMME BY USING HIS SKILL AS AN ACTOR/ARTIST ANCHORING TV SHOW, WHICH CONTRIBUTED GREATER UNDERSTANDING OF OUR COUN TRY AND IMMENSE POPULARITY WAS HELD TO BE DERIVED BY HIM AS AN ARTI ST AND DEDUCTION U/S 80RR WAS ALLOWED TO HIM IN RESPECT OF PAYMENT RECEI VE BY HIM FROM FOREIGN COMPANY. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL AT PARA 17 OF THE ORDER READS AS UNDER:- IF WE LOOK INTO THE DEFINITIONS, IT IS VERY DIFFIC ULT TO EXCLUDE THE PRESENT ASSESSEE FROM BEING AN ARTIST. AFTER ALL T HE WORD ARTIST IS TERM OF WIDER CONNOTATION AND DOES NOT ACCEPT THE R ESTRICTIONS AS ARE MADE OUT BY THE DEPARTMENT. THE BOARD ITSELF EX AMINED THE WORD ARTIST TO INCLUDE PHOTOGRAPHERS AND YV NEWS FILM CAMERAMAN AS ALSO A DIRECTOR OF A FILM OR A SCRIPT WRITER. THE VARIOUS MEANINGS ASSIGNED TO THE TERM ARTIST BY D IFFERENT STANDARD DICTIONARIES CLEARLY SHOW THAT THE TERM A RTIST IS A TERM WHICH HAS WIDE MEANING NOT MERELY RESTRICTED TO TH E MEANING OF FINE ARTS BUT ENCOMPASSES WITHIN ITS SCOPE, A SKILL ED PERFORMER. WE ALSO ACCEPT THE CONTENTION OF THE ASSESSEE THAT CERTAIN OBLIGATIONS ATTACHED TO SHRI AMITABH BACHCHAN UNDER VARIOUS AGREEMENTS WHICH ARE PART OF THE RECORD CLEARLY DEM AND FROM HIM EXHIBITION OF SKILL AS AN ARTIST IF NOT AS AN ACTOR . A PHOTOGRAPHER JUST TAKES THE PHOTOS OF THE IMAGE ALREADY EXISTING IN THE NATURE AND DOES NOTHING CREATIVE EXCEPT THE WAY AND METHOD THE PHOTOGRAPHY IS TAKEN BUT THAT MAKES THE DIFFERENCE AND HE IS KNOWN AS AN ARTIST. SIMILARLY, A PERSON WHO IS PER FORMING IN THE KBC PROGRAMME CANNOT BE CONSIDERED PERFORMING ONLY AS AN ANCHOR AND DOES NOT USE SKILLS AS AN ARTIST IMPOSIN G CERTAIN QUESTIONS AND CREATING INTEREST IN THE PROGRAMME. THE SUCCESS OF THE KBC PROGRAMME COMPARED TO OTHER SIMILAR PROGRAM MES 23 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR CLEARLY SHOWS SOME DISTINCTIVE FEATURES THAT CREATE D INTEREST IN THE PROGRAMME THAT WAS HOSTED BY THE ASSESSEE. THE DIF FERENCE BETWEEN KBC PROGRAMME AND REST OF OTHER PROGRAMMES IS MAINLY IN OUR OPINION, THE USAGE OF THE SKILLS OF SHRI AMI TABH BACHCHAN, AS AN ACTOR OR AN ARTIST. IN OUR OPINION, THE ASSE SSEE HAS DERIVED THE DISPUTED INCOME AS AN ARTIST WITHIN THE WIDER M EANING ASCRIBED TO IT AS EXTRACTED ABOVE AND ALSO IN THE L IGHT OF THE RELEVANT CLAUSES OF AGREEMENT WHICH REQUIRE HIM TO EXHIBIT SUCH SKILLS. SOME PORTION OF THE INCOME IS DEFINITELY DU E TO HIS BACKING OF EXCELLENCE AS AN ACTOR TOO. IT IS VERY DIFFICULT TO SEGREGATE SHRI AMITABH BACHCHAN AS AN ASSESSEE FROM BEING AN ACTOR IN ANY WORK WHAT HE DOES. IN OUR OPINION, THE PROVISIONS OF DEDUCTIONS ARE MAINLY BENEFICIAL PROVISIONS AND HAVE TO BE CON STRUED IN A MANNER THAT ACHIEVES THE INTENTION OF THE LEGISLATU RE AS MADE IN THE CIRCULAR FROM TIME TO TIME AND ALSO THE LEGISLA TURE AMENDMENTS THAT ARE MADE TO THE SECTIONS IN ORDER T O WIDEN THE SCOPE OF THE PERSONS FALLING UNDER THE RELEVANT SEC TION. IN THE CASE OF HARSHA BHOGLE (SUPRA) THE TRIBUNAL WENT IN TO THE OBJECTS AND INTENTION OF S. 80RR OF THE ACT AND IT WAS OBSE RVED IN PARA 23 AT P. 737 THAT HARSHA BHOGLE MAINLY PERFORMED ON TE LEVISION AND SUCH ACTIVITIES WERE NOT MAKING ANY CONTRIBUTION TO THE GREATER UNDERSTANDING OF OUR COUNTRY AND ITS CULTURE ABROAD ALTHOUGH IT WAS AUGMENTING THE FOREIGN EXCHANGE RESOURCES OF O UR COUNTRY BUT THAT IS NOT ENOUGH TO CLAIM TAX DEDUCTION UNDE R S. 80RR OF THE ACT, WHEREAS IF ONE WERE TO LOOK INTO THE CONT ENTS OF THE KBC PROGRAMME, THE PROGRAMME ITSELF IS SO DESIGNED WHER EIN ACTOR IS REQUIRED TO MAKE THE PROGRAMME VERY INTERESTING AND IMAGINATIVE AND HAS DEFINITELY CONTRIBUTED GREATER UNDERSTANDIN G OF OUR COUNTRY AND ITS CULTURE ABROAD. THE PROGRAMME OF KBC WAS NOT ONLY WATCHED IN INDIA BUT ALL OVER THE GLOBE AND MA INLY DEALT WITH INDIAN HISTORY, ITS GEOGRAPHY, RICH CULTURAL HERITA GES, ITS MYTHOLOGICAL STORIES, ITS CONSTITUTION AND LEGAL SY STEM AND ITS RICH RESOURCES. EVEN ON THIS ACCOUNT, THE ACTIVITI ES OF SHRI AMITABH BACHCHAN ARE CLEARLY DISTINGUISHABLE TO THA T OF A TELEVISION PRESENTER AND TV COMMENTATOR OF CRICKET MATCHES AS WAS HELD IN THE CASE OF HARSHA BHOGLE (SUPRA). THE ASSESSEE HAS PRODUCED BEFORE US SOME OF THE LITERATURES ON KBC P ROGRAMME WHICH WE HAVE ALREADY REPRODUCED ELSEWHERE IN OUR O RDER. WE ARE THEREFORE OF THE OPINION THAT THE ASSESSEE IS AN AR TIST WHILE HE RECEIVED THE DISPUTED INCOME WITHIN THE MEANING OF S. 80RR OF THE ACT. WE, THEREFORE, DIRECT THE A.O. TO GRANT RELIE F OF DEDUCTION UNDER S. 80RR OF THE ACT. 7.5 WE FIND THE TRIBUNAL IN THE CASE OF SHAH RUKH K HAN (SUPRA) FOLLOWING THE ABOVE DECISION ALLOWED DEDUCTION U/S 80RR ON AC COUNT OF INCOME RECEIVED FOR ENDORSEMENT OF PERFORMANCE WHERE THE A SSESSEE HAS TO GIVE PHOTOGRAPHS, ATTEND PHOTO SESSION, VIDEO SHOOTS ETC . 24 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 7.6 WE FIND THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF TARUN R. TAHILIANI (SUPRA) HAVE ANALYSED THE ALLOWABILITY OF DEDUCTION U/S 80RR AND HELD THAT THE WORK OF DRESS DESIGNING INVOLVES SKIL L AND ACCORDINGLY IT WAS HELD THAT A DRESS DESIGNER IS AN ARTIST. THE RELEVA NT PORTION OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT AT PARA 6 TO 9 RE AD AS UNDER:- 6. THE ESSENTIAL REQUIREMENTS OF S. 80RR ARE THAT (I) THE DEDUCTION IS AVAILABLE TO A RESIDENT INDIVIDUAL WHO IS AN AUTHOR, PLAYWRIGHT, ARTIST, MUSICIAN, ACTOR OR SPORTSMAN, I NCLUDING AN ATHLETE; (II) THE GROSS TOTAL INCOME OF SUCH A PERS ON MUST INCLUDE INCOME DERIVED BY HIM 'IN THE EXERCISE OF HIS PROFE SSION'; (III) THE INCOME MUST BE DERIVED FROM A GOVERNMENT OF A FOREI GN STATE OR FROM ANY PERSON NOT RESIDENT IN INDIA. IF THESE REQ UIREMENTS ARE MET, THEN IN COMPUTING THE TOTAL INCOME OF THE INDI VIDUAL A DEDUCTION IS ALLOWABLE, TO THE EXTENT PROVIDED, AT A PROPORTION OF THE AMOUNT WHICH IS BROUGHT INTO INDIA IN CONVERTIB LE FOREIGN EXCHANGE WITHIN THE STIPULATED PERIOD. THE DEDUCTIO N WAS AVAILABLE DURING THE COURSE OF THE ASSESSMENT YEARS BEGINNING ON 1ST APRIL, 2001, 1ST APRIL, 2002, 1ST APRIL, 2003 A ND 1ST APRIL, 2004. NO DEDUCTION IS PERMISSIBLE WITH EFFECT FROM THE ASSESSMENT YEAR BEGINNING ON 1ST APRIL, 2005. 7. THE FINANCE ACT OF 1969 INSERTED S. 80RR W.E.F. 1ST APRIL, 1970. THE REASONS FOR THE INTRODUCTION OF THE PROVI SION WERE EXPLAINED IN CIRCULAR NO. 22 OF 17TH JULY, 1969 THU S : 'THIS PROVISION IS DESIGNED TO ENCOURAGE SUCCESSFUL AUTHO RS, PLAYWRIGHTS, ARTISTS, MUSICIANS AND AUTHORS IN OUR COUNTRY TO PROJECT THEIR ACTIVITIES OUTSIDE INDIA WITH A VIEW TO CONTRIBUTING TO GREATER UNDERSTANDING OF OUR COUNTRY AND ITS CULTUR E ABROAD AND ALSO AUGMENTING OUR FOREIGN EXCHANGE RESOURCES. SOM E OF THE PROFESSIONAL ACTIVITIES COMING WITHIN THE SCOPE OF THIS SECTION ARE : PUBLICATION OUTSIDE INDIA OF A BOOK PRODUCED BY THE AUTHOR, CONTRIBUTION OF ARTICLES TO FOREIGN JOURNALS OR MAG AZINES, EXHIBITION OF PAINTINGS, SCULPTURES AND OTHER WORKS OF ART IN FOREIGN COUNTRIES, GIVING OF MUSIC CONCERTS TO FORE IGN AUDIENCES AND ACTING IN DRAMATIC PERFORMANCES, CINEMATOGRAPH FILMS AND TELEVISION PROGRAMMES IN FOREIGN COUNTRIES.' THE CI RCULAR REFERS TO THE OBJECT AS BEING TO PROMOTE A GREATER UNDERSTAND ING OF THE COUNTRY AND ITS CULTURE ABROAD AND THE ENHANCEMENT OF FOREIGN EXCHANGE RESERVES. YET, IT MUST BE NOTED THAT THE S TATUTORY PROVISION DOES NOT REQUIRE AN AUTHOR OR PLAYWRIGHT TO WRITE A BOOK 25 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR OR PLAY ON AN ASPECT OF INDIAN CULTURE TO QUALIFY F OR A DEDUCTION. THE FREEDOM OF THE AUTHOR, AND FOR THAT MATTER, OF A PLAYWRIGHT, MUSICIAN, ARTIST OR ACTOR TO CHOOSE THE MEDIUM OF T HE MESSAGE IS AS WIDE AS IT CAN BE UNDER THE CONSTITUTIONAL GUARA NTEE OF FREE SPEECH. THE CONTENT OF THE MESSAGE IS NOT STRUCTURE D BY S. 80RR. EVEN FISCAL LEGISLATION HAS TO BE DEFERENTIAL TO CO NSTITUTIONAL RIGHTS. PARLIAMENT HAS CONTEMPLATED THE GRANT OF A DEDUCTION TO BROAD CATEGORIES. THOSE CATEGORIES ARE NOT ARTIFICI ALLY DEFINED. THE NATURE OF THE WORK WHICH IS THE SOURCE OF THE INCOM E IS SUBJECT TO THE REQUIREMENT THAT THE INCOME MUST BE DERIVED FRO M THE 'EXERCISE OF THE PROFESSION'. IN A CIRCULAR (NO. 31 ) OF THE BOARD, DT. 25TH OCT., 1969 IT WAS CLARIFIED THAT THE EXPRESSIO N ARTIST INCLUDES PHOTOGRAPHERS AND TV CAMERAMEN FOR S. 80RR. BY A CI RCULAR (NO. 675), DT. 3RD JAN., 1994 [(1994) 116 CTR (ST) 13], THE BOARD CLARIFIED THAT A SCRIPT WRITER IS A PLAYWRIGHT AND THAT A DIRECTOR IS AN ARTIST FOR THE PURPOSE OF S. 80RR. HOWEVER, A PR ODUCER DOES NOT FALL IN ANY OF THE STATED CATEGORIES. 8. THE CATEGORIES OF PERSONS TO WHOM S. 80RR ALLOWS A DEDUCTION ARE (I) AUTHORS; (II) PLAYWRIGHTS; (III) ARTISTS; (IV) MUSICIANS; (V) ACTORS; AND (VI) SPORTSMEN, INCLUDIN G ATHLETES. THE EXPRESSION 'ARTISTS' IS NOT DEFINED BY THE STATUTE. HENCE, PARLIAMENT MUST HAVE INTENDED THAT AN ARTIST MUST B E UNDERSTOOD IN ITS ORDINARY SENSE. NO ARTIFICIAL CONSTRUCTS OR DEEMING FICTIONS. THERE IS NOTHING IN THE STATUTORY PROVISION WHICH W OULD CONFINE THE MEANING OF THE EXPRESSION TO A PERSON ENGAGED I N THE FINE ARTS. THE EXPRESSION 'ARTIST' OCCURS AFTER THE EXPR ESSION AUTHOR, AND PLAYWRIGHT AND BEFORE THE EXPRESSION MUSICIAN, ACTOR OR SPORTSMAN. AN ARTIST IS DEFINED IN THE CORPUS JURIS SECONDUM AS FOLLOWS : 'A PERSON OF SPECIAL SKILL OR ABILITY IN ANY FIELD, ONE WHO IS HIGHLY ACCOMPLISHED, ESPECIALLY ONE VERSED IN THE L IBERAL ARTS. ALSO ONE WHO PROFESSES AND PRACTICES ONE OF THE FINE ART S. THE TERM 'ARTIST' MAY REFER TO ONE SKILLED IN TRADE OR ART; AND HAS BEEN HELD BROAD ENOUGH TO INCLUDE ARCHITECTS AND A SURVEYOR. THE TERM HAS BEEN HELD NOT INCLUDE A DANCING INSTRUCTOR, A NEON SIGN MAKER, A BARBER, COOK, DRESSMAKER, MILLINER, OR TAILOR.' THE EXPRESSION IS DEFINED IN THE RANDOM HOUSE DICTIONARY AS FOLLOWS : '1. ONE WHO PRODUCES WORKS IN ANY OF THE ARTS THAT ARE PRIMARIL Y SUBJECT TO AESTHETIC CRITERIA. 2. A PERSON WHO PRACTICES ONE O F THE FINE ARTS ESPECIALLY A PAINTER OR SCULPTOR. 3. ONE WHOSE TRAD E OR PROFESSION REQUIRES KNOWLEDGE OF DESIGN, DRAWING, PAINTING ETC . A COMMERCIAL ARTIST. 4. A PERSON WHO WORKS IN ONE OF THE PERFOR MING ARTS, AS AN ACTOR, MUSICIAN, OR SINGER, A PUBLIC PERFORMER, A M IME ARTIST OF THE DANCE. 5. ONE WHO EXHIBITS EXCEPTIONAL SKILL IN HIS WORK.' 26 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY DEFINES THE EXPRESSION AS : '1(A) ONE WHO PROFESSES AND PRACTIC ES AN ART IN WHICH CONCEPTION AND EXECUTION ARE GOVERNED BY IMAG INATION AND TASTE. (B) A PERSON SKILLED IN ONE OF THE FINE ARTS ; ESPECIALLY PAINTER. 2(A) A PERFORMER OF MUSIC IN PUBLIC (AS A SINGER, PIANIST OR CONDUCTOR). (B) A THEATRICAL PERFORMER.' IN THE OXF ORD ENGLISH DICTIONARY AN ARTIST IS DEFINED AS 'ONE SKILLED IN THE 'LIBERAL' OR LEARNED ARTS, ONE WHO IS A MASTER OF THE LIBERAL AR TS OR A SKILLED PERFORMER, A PROFICIENT, A CONNOISSEUR.' IN THE CON CISE OXFORD DICTIONARY THE EXPRESSION HAS BEEN DEFINED AS FOLLO WS : '(I) A PAINTER (II) A PERSON WHO PRACTICES ANY OF THE ARTS (III) AN ARTIST (IV) A PERSON WHO WORKS WITH THE DEDICATION AND ATTRIBUT ES ASSOCIATED WITH AN ARTIST. (V) A DEVOTEE; A HABITUAL PRACTISER OF A SPECIFIED ACTIVITY.' 9. SIMPLY STATED, AN ARTIST IS A PERSON WHO ENGAGES IN AN ACTIVITY WHICH IS AN ART. ARTISTS, AS WE UNDERSTAND THEM, US E SKILL AND IMAGINATION IN THE CREATION OF AESTHETIC OBJECTS AN D EXPERIENCES. DRAWING, PAINTING, SCULPTURE, ACTING, DANCING, WRIT ING, FILM MAKING, PHOTOGRAPHY AND MUSIC ALL INVOLVE IMAGINATI ON, TALENT AND SKILL IN THE CREATION OF WORKS WHICH HAVE AN AE STHETIC VALUE. A DESIGNER USES THE PROCESS OF DESIGN AND HER WORK RE QUIRES A DISTINCT AND SIGNIFICANT ELEMENT OF CREATIVITY. THE CANVASS OF DESIGN IS DIVERSE AND INCLUDES GRAPHIC DESIGN AND F ASHION DESIGN. AN ARTIST, AS PART OF HIS OR HER CREATIVE WORK, SEE KS TO ARRANGE ELEMENTS IN A MANNER THAT WOULD AFFECT HUMAN SENSES AND EMOTIONS. DESIGN, IN A CERTAIN SENSE, CAN BE CONSTR UED TO BE A RIGOROUS FORM OF ART OR ART WHICH HAS A CLEARLY DEF INED PURPOSE. THOUGH THE FIELD OF DESIGNING MAY BE REGARDED AS A RIGOROUS FACET OF ART, CREATIVITY, IMAGINATION AND VISUALIZATION A RE THE CORE OF DESIGN. DRESS DESIGNING HAS ASSUMED SIGNIFICANCE IN THE AGE IN WHICH WE LIVE, INFLUENCED AS IT IS BY THE MEDIA AND ENTERTAINMENT. AS A DRESS DESIGNER, THE ASSESSEE MUST BRING TO HIS WORK A HIGH DEGREE OF IMAGINATION, CREATIVITY AND SKILL. THE FA CT THAT DESIGNING INVOLVES SKILL AND EVEN TECHNICAL EXPERTISE DOES NO T DETRACT FROM THE FACT THAT THE DESIGNER MUST VISUALIZE AND IMAGI NE. A DESIGNER IS AN ARTIST. 7.7 NOW COMING TO THE FACTS OF THE PRESENT CASE, TH E ASSESSEE, WHILE APPEARING IN ADVERTISEMENTS AND COMMERCIALS, HAS TO FACE THE LIGHTS AND CAMERA. AS A MODEL, THE ASSESSEE BRINGS TO HIS WOR K A DEGREE OF IMAGINATION, CREATIVITY AND SKILL TO ARRANGE ELEMEN TS IN A MANNER THAT WOULD 27 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR AFFECT HUMAN SENSES AND EMOTIONS AND TO HAVE AN AES THETIC VALUE. NO DOUBT, BEING A SUCCESSFUL CRICKETER, IT HAS ADDED T O HIS BRAND VALUE AS A MODEL. BUT THE FACT REMAINS THAT THE ASSESSEE HAS TO USE HIS OWN SKILLS, IMAGINATION AND CREATIVITY. EVERY PERSON OR FOR THA T MATTER EVERY SPORTSMAN DO NOT POSSESS THAT DEGREE OF TALENT OR SKILL OR CR EATIVITY AND FACE THE LIGHTS AND CAMERA ETC. THE VARIOUS DECISIONS CITED BY THE LD. D.R., IN OUR OPINION ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND ARE DISTINGUISHABLE. 7.8 CONSIDERING THE TOTALITY OF THE FACTS OF THE CA SE AND IN THE LIGHT OF THE RATIO LAID DOWN IN THE DECISIONS CITED ABOVE, WE AR E OF THE CONSIDERED OPINION THAT THE INCOME RECEIVED BY THE ASSESSEE FROM MODEL LING AND APPEARING IN T.V. COMMERCIALS AND SIMILAR ACTIVITIES CAN BE TERM ED AS INCOME DERIVED FROM THE PROFESSION OF AN ARTIST. AS ADMITTED BY THE LD. D.R., THE ASSESSEE CAN HAVE MORE THAN ONE PROFESSION. THEREFORE, THERE IS NO BAR ON THE PART OF THE ASSESSEE TO HAVE ITS SECOND PROFESSION AS AN AR TIST APART FROM PLAYING CRICKET. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THE AMOUNT OF ` 5,92,31,211/- RECEIVED BY THE ASSESSEE AMOUNTS TO INCOME DERIVED BY THE ASSESSEE IN THE EXERCISE OF HIS PROF ESSION AS AN ARTIST AND THEREFORE ENTITLED TO DEDUCTION U/S 80RR OF THE ACT . WE HOLD ACCORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY AL LOWED. 8. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE OR DER OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF ` 5000/- OUT OF STAFF WELFARE EXPENSES DISALLOWED BY THE A.O. 8.1. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSE SSEE HAD CLAIMED AN AMOUNT OF ` 57,969/- TOWARDS STAFF WELFARE EXPENSES. WE FIND THE ASSESSEE CLAIMED BEFORE THE A.O. THAT STAFF WELFARE EXPENSES INCLUDED EXPENSES INCURRED FOR TEA, SNACKS ETC. PROVIDED TO STAFF. T HE A.O. NOTED FROM THE DETAILS FILED BY THE ASSESSEE THAT ONLY SIX PERSONS WORKED DURING THE YEAR AS HIS STAFF FOR WHICH THE ASSESSEE HAS SEPARATELY DEB ITED AN AMOUNT OF ` 28 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 2,43,300/- TOWARDS SALARY AND PERQUISITES. SINCE TH E EXPENSES CLAIMED WERE IN CASH AND WERE UNVERIFIABLE IN NATURE, THE A.O. D ISALLOWED AN AMOUNT OF ` 10,000/- ON ESTIMATE BASIS. ON APPEAL, THE LD. CIT (A) RESTRICTED THE SAME TO ` 5000/-, WHICH IN OUR OPINION IS REASONABLE UNDER T HE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, THE SAME I S UPHELD. GROUND NO. 2 BY THE ASSESSEE IS, THEREFORE, DISMISSED. 9. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF ` 50,000/- ON ACCOUNT OF ENTERTAINMENT EXPENSES. 9.1. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSE SSEE HAD DEBITED AN AMOUNT OF ` 6,16,041/- TOWARDS ENTERTAINMENT EXPENSES. ON BEI NG QUESTIONED BY THE A.O., IT WAS SUBMITTED THAT THE A BOVE EXPENSES WERE INCURRED ON FOOD AND BEVERAGES WITH CLIENTS/THEIR R EPRESENTATIVES DURING VARIOUS MEETINGS. FROM THE DETAILS FAILED BY THE AS SESSEE, THE A.O. NOTED THAT THE EXPENSES ARE INCURRED IN CASH AND THEREFOR E UNVERIFIABLE IN NATURE. THE EXPENSES INCURRED FOR THE MONTH OF JULY, AUGUST & SEPTEMBER, 2002 WERE MORE AS COMPARED TO THE OTHER MONTHS. ALTHOUG H THE ASSESSEE FILED REPLY, BUT DID NOT FILE ANY EVIDENCE IN SUPPORT OF THE ABOVE CLAIM. SINCE THE EXPENSES WERE MADE MOSTLY IN CASH AND NO DETAILS WE RE FILED, THE A.O. WAS OF THE VIEW THAT PERSONAL ELEMENT IN THE EXPENSES C ANNOT BE RULED OUT. THE A.O., THEREFORE, DISALLOWED AN AMOUNT OF ` 1,42,091/-. IN APPEAL, THE CIT(A) RESTRICTED THE DISALLOWANCE TO ` 50,000/- ON THE GROUND THAT THE DISALLOWANCE MADE ON ESTIMATED BASIS APPEARS TO BE ON HIGHER SIDE. 9.2 AFTER HEARING BOTH THE SIDES, WE FIND THE DISAL LOWANCE OF ` 50,000/- IS QUITE JUSTIFIED UNDER THE FACTS AND CIRCUMSTANCES O F THE CASE AND ACCORDINGLY THE SAME IS UPHELD. GROUND NO. 3 RAISE D BY THE ASSESSEE IS DISMISSED. 29 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 10. IN GROUND NO. 4, THE ASSESSEE HAS CHALLENGED TH E ORDER OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF ` 50,000/- OUT OF TELEPHONE EXPENSES. 10.1 AFTER HEARING BOTH THE SIDES, WE FIND THE A.O . DISALLOWED AN AMOUNT OF ` 1,16,540/- OUT OF TELEPHONE EXPENSES OF ` 4,86,412/- ON THE GROUND THAT THE BILLS WERE IN THE NAME ASSESSEES WIFE. IN APP EAL, THE CIT(A) RESTRICTED THE DISALLOWANCE TO ` 50,000/- ON THE GROUND THAT ALTHOUGH THE BILLS WER E IN THE NAME OF THE WIFE OF THE ASSESSEE, A NUMBER OF C ALLS WERE MADE BY THE ASSESSEE FROM THE PHONES. THE REVENUE IS NOT IN APP EAL AGAINST THE FINDINGS OF THE CIT(A). CONSIDERING THE TOTALITY OF THE FAC TS AND CIRCUMSTANCES OF THE CASE, THE DISALLOWANCE OF ` 50,000/- IN OUR OPINION IS QUITE REASONABLE AND NO INTERFERENCE IS CALLED FOR. GROUND NO. 4 OF ASS ESSEES APPEAL IS ACCORDINGLY DISMISSED. 10.2 IN GROUND NO. 5 THE ASSESSEE HAS CHALLENGED TH E ORDER OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF ` 1,42,824/- ON ACCOUNT OF MOTOR CAR EXPENSES. 10.3 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESS EE HAS DEBITED MOTOR CAR EXPENSES OF ` 3,08,775/-, MOTOR CAR INSURANCE OF ` 1,89,608 AND MOTOR CAR DEPRECIATION OF ` 2,15,737/-. IN ABSENCE OF MAINTENANCE OF LOG BOOK , THE A.O. WAS OF THE OPINION THAT PERSONAL USE OF MOTOR CAR FOR SELF AND FAMILY MEMBERS CANNOT BE RULED OUT. HE ALSO REJECTED THE E XPLANATION GIVEN BY THE ASSESSEE HOLDING THE SAME TO BE A VAGUE AND GENERAL REPLY AND DISALLOWED 1/5 TH OF THESE EXPENSES AMOUNTING TO ` 1,42,824/- ON ACCOUNT OF PROBABLE PERSONAL USE. IN APPEAL, THE CIT(A) CONFIRMED THE DISALLOWANCE MADE BY THE A.O. FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 10.4 AFTER HEARING BOTH THE SIDES, WE ARE OF THE CO NSIDERED OPINION THAT THERE IS NO INFIRMITY IN THE ORDER OF THE CIT(A). A DMITTEDLY, NO LOG BOOK HAS 30 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR BEEN MAINTAINED BY THE ASSESSEE, THEREFORE, PERSONA L USE OF MOTOR CAR FOR SELF AND OTHER FAMILY MEMBERS CANNOT BE RULED OUT. ACCORDINGLY, THE DISALLOWANCE OF 1/5 TH OF THE MOTOR CAR EXPENSES AMOUNTING TO ` 1,42,824/- BEING VERY REASONABLE UNDER THE FACTS AND CIRCUMSTA NCES IS JUSTIFIED. THE GROUND NO. 5 RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. 11. GROUND NO. 6 RELATES TO INITIATION OF PENALTY P ROCEEDING U/S 271(1)(C) OF THE ACT. 11.1. AFTER HEARING BOTH THE SIDES, WE ARE OF THE O PINION THAT THE ABOVE GROUND IS PRE-MATURE AT THIS JUNCTURE. ACCORDINGLY, THE SAME IS DISMISSED. ITA NO. 430/MUM/2008 (A.Y. 2004-05) 12. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED TH E ORDER OF THE CIT(A) IN DENYING THE ASSESSEES CLAIM FOR DEDUCTION U/S 80RR AMOUNTING TO ` 38,56,611/-. 12.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 1 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATIO, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 13. GROUND NO. 2 RELATES TO THE ORDER OF THE CIT(A) IN CONFIRMING THE DISALLOWANCE ` 10,000/- MADE BY THE A.O. ON ACCOUNT OF STAFF WEL FARE EXPENSES OUT OF TOTAL EXPENDITURE OF ` 63,157 CLAIMED BY THE ASSESSEE. 13.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABO VE GROUND IS IDENTICAL TO GROUND NO. 2 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN 31 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 14. GROUND NO. 3 RELATES TO ORDER OF CIT(A) IN CONF IRMING THE DISALLOWANCE ` 25,000/- MADE BY THE A.O. ON ACCOUNT OF ENTERTAIN MENT EXPENSES OUT OF TOTAL EXPENDITURE OF ` 3,72,448/- CLAIMED BY THE ASSESSEE. 14.1 AFTER HEARING BOTH THE SIDES, WE FIND THE AB OVE GROUND IS IDENTICAL TO GROUND NO. 3 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 15. GROUND NO. 4 RELATES TO THE ORDER OF THE CIT(A) IN CONFIRMING THE DISALLOWANCE ` 37,000/- MADE BY THE A.O. ON ACCOUNT OF TELEPHONE EXPENSES OUT OF TOTAL EXPENDITURE OF ` 3,70,029/- CLAIMED BY THE ASSESSEE. 15.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 4 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 16. GROUND NO. 5 RELATES TO THE ORDER OF THE CIT(A) IN CONFIRMING THE DISALLOWANCE ` 10,74,997/- MADE BY THE A.O. ON ACCOUNT OF MOTOR CAR EXPENSES CLAIMED BY THE ASSESSEE. 16.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 5 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN 32 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 17. GROUND NO. 6 RELATES TO INITIATION OF PENALTY P ROCEEDING U/S 271(1)(C) OF THE ACT. 17.1 AFTER HEARING BOTH THE SIDES, WE ARE OF THE OP INION THAT THE ABOVE GROUND IS PRE-MATURE AT THIS JUNCTURE. ACCORDINGLY, THE SAME IS DISMISSED. ITA NO. 428/M/2008 (A.Y. 2001-02) 18. GROUND NO. 1 RELATES TO THE ORDER OF CIT(A) IN UPHOLDING THE REASSESSMENT PROCEEDINGS INITIATED BY THE A.O. 18.1 THE FACTS OF THE CASE IN BRIEF ARE THAT THE AS SESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT ` 6,94,52,995/- ON 29 TH OCTOBER, 2001 WHICH WAS PROCESSED U/S 143(1) OF THE I.T. ACT. SU BSEQUENTLY, THE A.O. REOPENED THE ASSESSMENT U/S 147 FOR THE REASON THAT INCORRECT CLAIM OF DEDUCTION HAS BEEN MADE BY THE ASSESSEE U/S 80RR OF THE ACT. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED AND SERVED UPON THE ASSES SEE ON 31.3.2006. 18.2 BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE A. O. HAD NO REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAD ESCAP ED ASSESSMENT FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT S INCE THE RETURN WAS PROCESSED U/S 143(1) AND THE A.O. HAD NO OCCASION T O APPLY HIS MIND, THEREFORE, THE CONTENTION OF THE ASSESSEE THAT A.O. HAD NO REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT DOES NOT HOLD GO OD. THE VARIOUS JUDICIAL PRONOUNCEMENTS CITED BEFORE HIM WERE REJEC TED BY HIM ON THE GROUND THAT THE ISSUE OF CHANGE OF OPINION IS NOT R ELEVANT SINCE THE A.O. HAS NOT APPLIED HIS MIND. HE, ACCORDINGLY, UPHELD THE ACTION OF THE A.O. IN 33 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR REOPENING THE ASSESSMENT U/S 147 OF THE ACT. AGGRI EVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 18.3 AFTER HEARING BOTH THE SIDES, WE FIND THE ASSE SSMENT WAS REOPENED WITHIN A PERIOD OF 4 YEARS FROM THE END OF THE RELE VANT ASSESSMENT YEAR. THEREFORE, IN VIEW OF THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. 291 ITR 510 (S C), REASSESSMENT PROCEEDING INITIATED BY THE A.O. ARE LEGALLY VALID. ACCORDINGLY, THIS GROUND RAISED BY THE ASSESSEE IS DISMISSED. 19. GROUND NO. 2 RELATES TO DENIAL OF DEDUCTION U/S 80RR AMOUNTING TO ` 3,35,53,410/-. 19.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 1 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATIO, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 20. GROUND NO. 3 RELATES TO ORDER OF THE CIT(A) IN CONF IRMING THE DISALLOWANCE ` 25,000/- MADE BY THE A.O. ON ACCOUNT OF ENTERTAIN MENT EXPENSES OUT OF TOTAL EXPENDITURE OF ` 2,82,861/- CLAIMED BY THE ASSESSEE. 20.1 AFTER HEARING BOTH THE SIDES, WE FIND THE AB OVE GROUND IS IDENTICAL TO GROUND NO. 3 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 21. GROUND NO. 4 RELATES TO ORDER OF THE CIT(A) IN CONF IRMING THE DISALLOWANCE ` 43,600/- MADE BY THE A.O. ON ACCOUNT OF TELEPHONE EXPENSES OUT OF TOTAL EXPENDITURE OF ` 3,35,761/- CLAIMED BY THE ASSESSEE. 34 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 21.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 4 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 22. GROUND NO. 5 RELATES TO ORDER OF THE CIT(A) IN CONF IRMING THE DISALLOWANCE OF ` 1,14,421/- MADE BY THE A.O. ON ACCOUNT OF MOTOR C AR EXPENSES CLAIMED BY THE ASSESSEE. 22.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 5 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 23. GROUND NO. 6 RELATES TO INITIATION OF PENALTY PROCE EDING U/S 271(1)(C) OF THE ACT. 23.1 AFTER HEARING BOTH THE SIDES, WE ARE OF THE OP INION THAT THE ABOVE GROUND IS PRE-MATURE AT THIS JUNCTURE. ACCORDINGLY, THE SAME IS DISMISSED. ITA NO. 6862/MUM/2008 (A.Y. 2002-03) 24. GROUND NO. 1 RELATES TO THE ORDER OF CIT(A) IN CONFIRMING THE REOPENING OF ASSESSMENT U/S 147 OF THE I.T. ACT. 24.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ORIG INAL RETURN OF INCOME DECLARING TOTAL INCOME AT ` 13,96,11,299/- WAS FILED ON 29 TH OCTOBER, 2002. THE SAME WAS PROCESSED U/S 143(1) OF THE ACT ON 25. 01.2003. SUBSEQUENTLY, THE CASE WAS RE-OPENED U/S 147 FOR TH E REASON THAT INCORRECT 35 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR CLAIM OF DEDUCTION HAS BEEN MADE BY THE ASSESSEE U/ S 80RR OF THE ACT. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED ON 16.11.200 6. SINCE THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(1) AND THE NOTICE IS ISSUED WITHIN 4 YEARS FROM THE END OF THE RELEVANT A.Y. THEREFORE I N VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. 291 ITR 510 (SC), THE REASSESSMENT PROCEEDING INITI ATED BY THE A.O. IS LEGALLY VALID. GROUND NO. 1 RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. 25. GROUND NO. 2 RELATES TO DENIAL OF DEDUCTION U/ S 80RR AMOUNTING TO ` 1,06,70,020/-. 25.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 1 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATIO, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 26. GROUND NO. 3 RELATES TO THE ORDER OF THE CIT(A) IN CONFIRMING THE A.O.S DISALLOWANCE OF ` 85613/- BEING 20% OF THE MOTOR CAR EXPENSES. 26.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 5 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 27. GROUND NO. 4 RELATES TO THE ORDER OF THE CIT(A) IN CONFIRMING THE DISALLOWANCE ` 30,000/- MADE BY THE A.O. ON ACCOUNT OF TELEPHONE EXPENSES OUT OF TOTAL EXPENDITURE OF ` 4,18,044/- INCURRED BY THE ASSESSEE. 36 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 27.1 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOV E GROUND IS IDENTICAL TO GROUND NO. 4 IN ITA NO. 429/MUM2008 FOR A.Y. 2003-0 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE ASSE SSEE HAS BEEN DISMISSED. FOLLOWING THE SAME RATIO, THE GROUND RAI SED BY THE ASSESSEE IS DISMISSED. 28. GROUND NO. 5 RELATES TO THE CHARGING INTEREST U /S 234B(3). 28.1 AFTER HEARING BOTH THE SIDES, WE ARE OF THE C ONSIDERED OPINION THAT CHARGING INTEREST U/S 234B(3) IS MANDATORY AND CONS EQUENTIAL IN NATURE. ACCORDINGLY, THE SAME IS DISMISSED. 29. IN THE RESULT, THE ABOVE 4 APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON THE 20 TH DAY OF MAY, 2011. SD/- SD/- ( ASHA VIJAYARAGHAVAN ) JUDICIAL MEMBER ( R K PANDA ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 20 TH MAY, 2011 RK COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI 37 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR 1 DRAFT DICTATED ON 20 APR 11, 25.4.11,28.4.11,3.5.11,6.5.11 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 25.4.11, 29.5.11,9.5.11 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER 12.5.11 JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS 38 ITA NO.428 TO 430/M/08 & 6862/M/08 MR. SACHIN TENDU LKAR