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

ITA 536/KOL/2013

• Counselvise Citation: 53623514 RSA 2013
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 14-03-2013
• Court: TRIBUNAL
• Assessee Lawyers: SHREYA AGARWAL ACA
• Section: 143(3); 54F

Judgement Text

I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER I.T.A. NO.: 536/ KOL./ 2013 ASSESSMENT YEAR : 2005-2006 DILIP LOYALKA,..................................... ..............................APPELLANT 16, MANGO 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: SMT. SHREYA AGARWAL, ACA, FOR THE APPELLANT SHRI PRABAL CHOWDHURY, JCIT, SR. D.R., FOR THE RESP ONDENT DATE OF CONCLUDING THE HEARING : NOVEMBER 13, 2015 DATE OF PRONOUNCING THE ORDER : DECEMBER 04, 2015 O R D E R PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS ARISING OUT O F THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL(IN SH ORT CIT(A))IN APPEAL NO. 127/CIT(A)/ASL/CIR-3/ASL/07-08 DATED 11. 02.2013 FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-3, ASANSOL, U/S 143(3) OF THE INCOME TAX ACT, 1961(HER EINAFTER CALLED AS THE ACT) ORDER DATED 24.12.2007 FOR THE ASSESSMEN T YEAR 2005-06. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(APPEALS) CONFIRMING THE DISALLOWANCE OF DEDUCTI ON CLAIMED BY ASSESSEE UNDER SECTION 80QQB AMOUNTING TO RS.99,000 /-. I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 2 OF 11 3. BRIEFLY STATED THE FACTS ARE THAT DURING THE PRE VIOUS YEAR 2004-05 RELEVANT TO THE ASSESSMENT YEAR 2005-06, THE ASSESS EE RECEIVED ROYALTY TO THE TUNE OF RS.99,000/- FOR HIS BOOK ON INCOME TAX AND CLAIMED DEDUCTION UNDER SECTION 80QQB OF THE ACT. THE ASSESSING OFFIC ER DISALLOWED DEDUCTION ON THE GROUND THAT THE BOOK ON INCOME-TAX IS NOT A LITERARY WORK. THE ASSESSING OFFICER QUOTED EXPLANATION TO S ECTION 80QQB, CLAUSE (B) AND HELD THAT IN VIEW OF THE ABOVE EXCLUSION OF PRINTED MATERIAL THE ASSESSEES CLAIM OF THE BOOK THAT IS IN QUESTION AND ANSWER FORMAT CANNOT BE TAKEN AS LITERARY WORKS. ACCORDINGLY, HE DISALLOWED THE DEDUCTION. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(APPEALS), WHO ALSO CONFIRMED THE ORDER OF THE A SSESSING OFFICER BY OBSERVING IN PARAS 18 TO 28 AS UNDER:- 18. I HAD EXAMINED THE WORK. THE BOOK CONSOLIDATE S PROVISIONS OF INCOME TAX ACT 1961, INCOME TAX RULES, CIRCULARS, I NSTRUCTIONS, CASE DECISIONS ETC. TOPIC WISE IN QUESTION ANSWER FORMAT . THE BOOK IS THEREFORE A REARRANGEMENT OF EXISTING MATERIAL. IN THIS CASE, THERE IS NO IMAGINATIVE, CREATIVE OR A DIFFERENT POINT OF VIEW IN THE PUBLICATION. BEFORE I DRAW MY CONCLUSION, I ANALYSE THE CASE DEC ISIONS SUBMITTED BY THE ASSESSEE IN THE CONTEXT OF THE CASE BELOW: SUBMISSION OF THE ASSESSEE MY VIEW DECISION IN LAL PAHARIA AND ANR. VS. GAYA PRASAD GUPTA RASAL ON 9 TH AUGUST, 1970 JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT INFOSEEK SOLUTIONS VS. KERALA LAW TIMES ON 4 TH OCTOBER, 2006 JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT EASTERN BOOK COMPANY V. NAVIN J. DESAI AIR 2002 (25) PTC 641 (DB) JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT EASTERN BOOK COMPANY & ORS. V. D.B. MODAK & ANR. (2008) 95 AIR 809 SC JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT SATSANG AND ANR. VS. KIRON CHANDRA MUKHOPADHYAY AND...ON 18 TH JULY, 1972 JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT AGARWALA PUBLISHING HOUSE VS. BOARD OF HIGH SCHOOL AND .. ON 19 TH APRIL, 1966 JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT CALEY AND SONS LTD. VS. GARRET AND SONS LTD. 1937 MACG. COP CAS 99 JUDGMENT IN CONTEXT OF COPYRIGHT, REGISTERED DESIGNS AND PATENTS HAFIZ VS. ABDURAHLIMAN MODHDOOMI 1999 3 KLT 384 JUDGMENT IN CONTEXT OF INDIAN COPYRIGHT ACT I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 3 OF 11 BRITISH OXYGEN CO. LTD. VS. LIQUID AIR LTD. 1925 CH 383 JUDGMENT IN CONTEXT OF COPYRIGHT ACT OF UNITED KINGDOM 19. IT CAN BE SEEN THAT ALL THE DECISION CITED ARE IN THE CONTEXT OF COPYRIGHT ACTS OF INDIA AND UK AND I HAD COME TO A FIRM CONCLUSION THAT DEFINITION OF 'LITERARY WORK' IN CONTEXT OF CO PYRIGHT ACT AND INCOME TAX ACT 1961 ARE ENTIRELY DIFFERENT. THE CAS E LAWS CITED BY ASSESSEE DOES NOT HELP ASSESSEE IN ESTABLISHING THE FACT THAT THE BOOK 'HOW TO HANDLE INCOME TAX PROBLEMS' AS A LITERARY W ORK. DETAILED DISCUSSION HAS BEEN MADE IN PARAGRAPH 8 TO 18 OF TH IS ORDER. ON THE BASIS OF CONCLUSIONS DRAWN, I FIND THAT THE APPELLA NT HAS FAILED IN THE TEST (A) FORMULATED IN PARAGRAPH 5. 20. THE FINDING IN PARAGRAPH 19 IS SUFFICIENT FOR D ISALLOWING THE DEDUCTION UNDER SECTION 80QQB. SINCE THE QUESTION A S TO WHETHER THE WORK IS A 'GUIDE' HAS BEEN FORMULATED, I PROCEED TO DISCUSS AND DECIDE THE MATTER. 21. THE ASSESSEE IN THEIR WRITTEN SUBMISSIONS DETAI LED THE LITERARY MEANING OF GUIDE. THIS IS IN THE BACK GROUND OF THE FACT THAT THE INCOME TAX ACT, 1961 HAS NOT DEFINED THE TERM GUIDE. THE WORK OF THE ASSESSEE IS PUBLISHING A BOOK. IT IS TO BE EXAMINED WHETHER IT IS A GUIDE OR NOT. AS STATED IN PARAGRAPH 18, THE BOOK CONSOLI DATES PROVISIONS OF INCOME TAX ACT 1961, INCOME TAX RULES, CIRCULARS, I NSTRUCTIONS, AND CASE DECISIONS TOPIC WISE IN QUESTION ANSWER FORMAT . THE BOOK IS THEREFORE A REARRANGEMENT OF EXISTING MATERIAL. THE RE IS NO ORIGINALITY. 22. WHILE MAKING WRITTEN SUBMISSIONS ON MEANING OF' GUIDE', THE ASSESSEE TRANSITED TO WORD 'GUIDEBOOK' AND ARGUED T HAT GUIDE CONCERNS TOURIST MATERIAL. THIS IS ON THE GROUND THAT THE AS SESSING OFFICER HAS ALLEGED IT AS A GUIDEBOOK. NOWHERE THE ASSESSING OF FICER HAD CONCLUDED THAT THE WORK IS A 'GUIDE BOOK'. HE STATED THAT IT IS THE AUTHOR WHO STATED IT TO BE A GUIDEBOOK. THE FINDING OF ASSESSI NG OFFICER IS AS UNDER: 'HENCE FROM THE ABOVE EXCLUSION OF PRINTED MATERIAL THE ASSESSEE'S CLAIM OF THE BOOK THAT IS IN QUESTION AN D ANSWER FORMAT CANNOT BE TAKEN AS LITERARY WORKS. MOREOVER IN THE PREFACE OF THE BOOK THE AUTHOR HIMS ELF INTRODUCE THE BOOK AS 'THE BOOK HAS BEEN PRESENTED IN STYLE OF QUESTIONS AND ANSWERS TO ENABLE THE READER S SAVE THEIR PRECIOUS TIME AND HELP THEM DIRECTLY FIND THE ANSWER TO A SPECIFIC PROBLEM WITHOUT GETTING THROUG H THE ENTIRE CHAPTER OR A LENGTHY COMMENTARY.' THE AUTHOR HIMSELF DESCRIBES THE BOOK AS A GUIDE BOOK TO THE R EADER. ON SIMPLE READING OF THE BOOK IT IS FOUND TO BE A G UIDE, WHICH DOES NOT HAVE ANY STYLE OF ITS OWN AND JUST S IMPLY AN EXPLANATION TO VARIOUS PROVISION OF THE INCOME T AX ACT. THE TERM' GUIDE' IN THE CONTEXT OF PUBLICATIONS, ME ANS A. SOMETHING, SUCH AS A PAMPHLET, THAT OFFERS BASIC INFORMATION O R INSTRUCTION ( WWW.THEFREEDICTIONARY.COM ) A BOOK, PAMPHLET, ETC. GIVING INFORMATION, INSTRUCTIONS, OR ADVICE, HANDBOOK: AN INVESTMENT GUIDE. I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 4 OF 11 EVEN PERUSING THE SOURCES CITED BY ASSESSEE, I FIND THAT NOWHERE IT HAS BEEN STATED THAT GUIDE IS ALWAYS A GUIDEBOOK. 23. THERE ARE NUMEROUS OTHER WORKS, AGAIN OF REARRA NGING EXISTING MATERIAL IN VARIOUS FORMS LIKE MASTER GUIDE TO INCO ME TAX, READY RECKONERS, COMMENTARIES ETC. THE BOOK 'HOW TO HANDL E INCOME TAX PROBLEMS' IS STRUCTURED BY REARRANGING EXISTING MAT ERIAL IN QUESTION ANSWER FORMAT AND IS INDUBITABLY A GUIDE. NOWHERE I T IS STATED, AS ARGUED BY ASSESSEE, THAT GUIDE HAS TO BE TOURIST MA TERIAL. I ACCORDINGLY HOLD THAT THE PUBLICATION 'HOW TO HANDLE INCOME TAX PROBLEMS' A GUIDE. ACCORDINGLY ASSESSEE FAILS IN TEST (B) FORMULATED I N PARAGRAPH 5, AGAIN DISENTITLING ELIGIBILITY TO CLAIM DEDUCTION UNDER S ECTION 80QQB OF INCOME TAX ACT 1961. 24. IT IS NEEDLESS TO ADD HERE THAT IF IT IS HELD T HAT THE WORK OF THE APPELLANT IS HELD AS LITERARY WORK QUALIFYING FOR D EDUCTION UNDER SECTION 80QQB, THEN EVERY WORK LIKE READY RECKONERS , COMMENTARIES, COMPILATIONS NOT ONLY APPLICABLE TO INCOME TAX ACT 1961, BUT IN REGARD TO EVERY OTHER ACT AND EVERY OTHER ASPECT OF LIFE W ILL QUALIFY FOR SUCH DEDUCTION. TO THWART THE SAME, STRICT QUALIFICATION HAVE BEEN PLACED IN THE SECTION BY THE LEGISLATURE. THESE QUALIFICATION S HAVE NOT BEEN MET BY APPELLANT AND HENCE HE IS NOT ELIGIBLE FOR DEDUC TION UNDER SECTION 80QQB OF INCOME TAX ACT 1961. 25. THE RELEVEANCE OF THE CLAIM OF ASSESSEE THAT 'T HE ASSESSEE HAS RECEIVED AN AWARD FROM CBDT (PRATYAKSH KAR SAHITYA PURUSKAR) ON HIS HINDI EDITION OF THE SAME BOOK 'KAISE SULJHAYE AAYE KAR SAMASYEIN' AS SECOND BEST LITERARY WORK ON INCOME TAX IN HINDI' I S EXAMINED NEXT. THE AWARD GIVEN BY CBDT IS AS PART OF THE EFFORT TO PROMOTE THE USE OF OFFICIAL LANGUAGE OF INDIA. THE BOOK PUBLISHED BY T HE ASSESSEE, WHEN TRANSLATED TO HINDI, IN THE OPINION THE DIRECTORATE OF INCOME TAX DEPARTMENT, ENTRUSTED WITH THE DUTY OF PROMOTION OF HINDI FOR OFFICIAL PURPOSE, HAS SELECTED THE WORK FOR THE PRIZE. THE R ECEIPT OF THIS PRICE OR ITS TITLE DOES NOT MAKE THE WORK OF ASSEESSEE OTHER WISE NOT A LITERARY WORK WITHIN THE MEANING OF SECTION 80QQB OF INCOME TAX ACT, 1961, A LITERARY WORK. HENCE THIS CONTENTION OF THE ASSESSE E IS NOT ACCEPTED. IN THE CONTEXT OF THE CLAIM OF ASSESSEE, HERE INCOME T AX DEPARTMENT IS TO BE VIEWED JUST AS A DEPARTMENT OF GOVT. OF INDIA, A ND THE CONFERMENT OF THE PRIZE IS NOT TO BE TAKEN FOR THE PURPOSE OF THE JUDICIAL DECISION MAKING PROCESS UNDER THE INCOME TAX ACT, 1961. THE PRIZE IS ONE OF THE PRIZES ONE OF THE DEPARTMENTS OF GOVERNMENT OF INDI A GIVES FOR PROMOTION OF OFFICIAL LANGUAGE OF INDIA VIZ. HINDI. JUST BECAUSE ITS TITLE CONTAINS THE TERM LITERARY, IT DOES NOT MEAN THAT T HE WORK IS LITERARY FOR THE PURPOSE OF SECTION 80QQB OF INCOME TAX ACT, 1961. HENCE THIS ARGUMENT IS ALSO NOT ACCEPTED. 26. SINCE I HAD MADE A FINDING THAT THE PUBLICATION IS NOT A LITERARY WORK AND IS A GUIDE AND THE PRIZE GIVEN BY A DEPART MENT OF GOVT. OF INDIA FOR PROMOTING HINDI DO NOT MAKE THE WORK OF A SSESSEE A LITERARY WORK WITHIN THE MEANING AND AMBIT OF CLAUSES OF INC OME TAX ACT, 1961, I REJECT THE GROUND AND UPHOLD THE DECISION OF ASSE SSING OFFICER IN DISALLOWING CLAIM OF ASSESSEE UNDER SECTION 80QQB O F INCOME TAX ACT, 1961. ACCORDINGLY THE GROUND IS DISMISSED. I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 5 OF 11 27. AT THE CONCLUSION OF HEARING THE APPELLANT HAS CITED A SERIES OF DECISIONS AND STATED THAT AS PER THESE DECISIONS, I F AT ALL THERE ARE DECISIONS THAT CREATE DOUBT, IT IS A SETTLED LAW TH AT IN CASE OF DOUBTS THE CONSTRUCTION MOST BENEFICIAL OR FAVOURABLE TO T HE ASSESSEE SHOULD BE ADOPTED EVEN IF IT RESULTS IN HIS OBTAINING A DO UBLE ADVANTAGE AND IF IT IS A CASE OF CONSIDERING THE RESPECTIVE HARDSHIP S OF INCONVENIENCES OF THE REVENUE AND THE ASSESSEE, THE COURT SHOULD LEAN IN FAVOUR OF THE ASSESSEE. THE APPELLANT ALSO PRODUCED THE DECISION OF HON. SUPREME COURT OF INDIA IN THE DECISION REPORTED IN 88 ITR 1 92. 28. THE DECISIONS ARE APPLICABLE IN CASE THERE IS A DOUBT. MY DISCUSSION IN THE PRECEDING PARAGRAPHS MAKES MATTER UNAMBIGUOUS ON THE ELIGIBILITY OF DEDUCTION UNDER SECTION 80QQB OF INCOME TAX ACT, 1961. IN ABSENCE OF DOUBTS OR AMBIGUITY, THE DECISI ONS ARE NOT APPLICABLE TO THE CASE. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS OF THIS CASE AND ALSO PROVISIONS OF THE ACT AS WELL THE PROPOSIT IONS OF LAW AND PRECEDENTS CITED BEFORE US BY BOTH SIDES. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, BY PROFESSION A CHARTERE D ACCOUNTANT. HE HAS AUTHORED BOOKS ON INCOME-TAX AND RECEIVED ROYALTY O N ITS BOOK HOW TO HANDLE INCOME TAX PROBLEMS. AS PER THE PROVISIONS OF SECTION 80QQB OF THE ACT CLAIMED DEDUCTION FOR THE ROYALTY RECEIVED ON ACCOUNT OF HIS BOOK. THE REQUISITE CERTIFICATE IN FORM NO. 10CCD WAS FIL ED ALONG WITH THE RETURN OF INCOME. THE ASSESSEE CLAIMED BEFORE THE AO AS WELL AS BEFORE THE CIT(A) THAT HE HAS RECEIVED AN AWARD FROM CBDT (PRATYAKSH KAR SAHITYA PURUSKAR) ON HIS HINDI EDITION OF THIS BOOK KAISE SULJHAYE AAYEKAR SAMASYEIN AND CONSIDERED THE SAME AS SECON D BEST LITERARY WORK ON INCOME TAX ON HINDI. COPY OF THE SAME WAS FILED BEFORE LOWER AUTHORITIES AND EVEN NOW BEFORE US. IN TERM OF THE ABOVE FACTS OF THE CASE, WHETHER THE ASSESSEE IS ELIGIBLE FOR CLAIM OF DEDUCTION U/S. 80QQB OF THE ACT ON RECEIPT OF ROYALTY FOR LITERARY WORK? 6. FROM THE ABOVE FACTS NOW WE HAVE TO SEE WHETHER THE ASSESSEES WORK I.E. AUTHORING OF BOOK IN HINDI IS A LITERARY WORK OR NOT. WE FIND THAT THE LOWER AUTHORITIES HAVE RELIED ON THE RELEV ANT DEFINITION OF I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 6 OF 11 LITERARY WORK AS DEFINED BY INDIAN COPYRIGHT ACT, 1 857, WHICH READS AS UNDER: SECTION 2(O): LITERARY WORK INCLUDES TABLES AND COMPILATIONS INCLUDING COMPUTER DATABASES. SECTION 2(Y) WORK MEANS ANY OF THE FOLLOWING WORK S, NAMELY:- I) A LITERARY, DRAMATIC, MUSICAL OR ARTISTIC WORK, II) A CINEMATOGRAPH FILM, III) A RECORD WE FIND THAT THE CIT(A) CONSIDERED THE EXPLANATION TO SECTION 80QQB OF THE ACT AND NOTED THAT, IT DOES NOT MEAN EVERYTHING THAT IS NOT LITERARY AS STATED IN EXPLANATION TO SECTION 80QQB OF THE ACT N EED BE LITERARY, SINCE, ANYTHING OUT OF BROCHURES, COMMENTARIES, DIARIES, GUIDES, JOURNALS, MAGAZINES, NEWSPAPERS, PAMPHLETS, TEXT BOOKS FOR SC HOOLS, TRACTS AND OTHER PUBLICATIONS OF SIMILAR NATURE, BY WHATEVER N AME CALLED HAS TO BE EXAMINED TO DECIDE WHETHER IT IS A LITERARY WORK OR NOT. HE NOTED THAT THE INDIAN COPYRIGHT ACT DEFINES LITERARY WORK IN AN EX TREMELY GENERAL INCLUSIVE FORM. THEN HE WENT ON TO DISCUSS THE COP YRIGHT FEE BY COMPARING THESE TWO ACTS. AND HE FINALLY HELD THAT EVERY LITERATURE IS NOT LITERARY WORK IN TERM OF SECTION 80QQB OF THE ACT. 7. THE WORD LITERARY WORK HAS NOT DEFINED UNDER THE ACT BUT HAS BEEN DEFINED BY SECTION 2(O) OF THE COPYRIGHT ACT, 1957. THE EXPRESSION LITERARY WORK COVERS WHICH ARE EXPRESSED IN PRINTIN G OR WRITING IRRESPECTIVE OF THE QUESTION WHETHER THE QUALITY OR STYLE IS HIGH OR WHETHER THERE IS ANY LITERARY MERIT OR NOT. THE EX PRESSION LITERARY WORK MEANS NOT ONLY SUCH WORK WHICH DEALS WITH ANY PARTI CULAR ASPECT OF LITERATURE IN POETRY BUT ALSO INDICATES A WORK WHIC H IS LITERATURE I.E. ANYTHING IN WRITING WHICH COULD BE SAID TO COME WIT HIN THE AMBIT OF LITERARY WORK. HONBLE KERALA HIGH COURT HAS DEALT ON THIS ISSUE IN THE CASE OF INFOSEEK SOLUTIONS & ANR. VS. KERALA LAW TI MES (2007) 34 PTC 231 (KER) AND OBSERVED THAT A LAW REPORT IS A COMPOSITE DOCUMENT AND ITS HEAD NOTES, EDITORIAL COMMENTS, FOOTNOTES, SETTING, LAYOUT, PRESENTATION ETC. AND EVEN THE SKILL AND LABOUR INVOLVED IN CHOO SING AS TO WHETHER A I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 7 OF 11 JUDGMENT SHOULD BE REPORTED IS A LITERARY WORK LEAD ING TO THE REPORTER AND PUBLISHER ACQUIRING COPYRIGHT OVER SUCH REPORT, AS A COMPOSITE DOCUMENTS INCLUDING THE TEXT OF THE JUDGMENT AS SO PUBLISHED BY THE REPORTER. 8. SIMILARLY, HONBLE 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 HEAD NOTES AND SHORT N OTES ARE LITERARY WORKS BUT EVEN THE JUDGMENTS CITED BY THE LAW REPORTERS BY (I) SEGREGA TING THE EXISTING PARAGRAPHS IN THE ORIGINAL TEXT BY BREAKING THEM INTO SEPARATE PARAGR APHS; (II) ADDING INTERNAL PARAGRAPH NUMBERING WITHIN A JUDGMENT AFTER PROVIDING UNIFORM PARAGRAPH NUMBERING TO THE MULTIPLE JUDGMENTS; AND (III) INDICATING IN THE JUD GMENT THE JUDGES WHO HAVE DISSENTED OR CONCURRED BY INTRODUCING THE PHRASES LIKE CONCU RRING, PARTLY CONCURRING, DISSENTING, SUPPLEMENTING, MAJORITY EXPRESSING NO OPINION ETC. HAVE TO BE VIEWED IN A DIFFERENT LIGHT. HONBLE SUPREME COURT FURTHER EX PLAINED THE LITERARY WORK IN TERM OF LEGAL DISCOURSE THAT THE TASK OF PARAGRAPH NUMBERIN G AND INTERNAL REFERENCING REQUIRES SKILL AND JUDGMENT IN GREAT MEASURE. THE EDITOR WHO INSERTS PARA NUMBERING MUST KNOW HOW LEGAL ARGUMENTATION AND LEGAL DISCOURSE IS COND UCTED AND HOW A JUDGMENT OF A COURT OF LAW MUST READ. OFTEN LEGAL ARGUMENTS OR CO NCLUSIONS 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 F OR DISCERNMENT FOR DETERMINING WHETHER TO CARVE OUT A SEPARATE PARAGRAPH FROM AN E XISTING PARAGRAPH IN THE ORIGINAL JUDGMENT OR TO CLUB TOGETHER SEPARATE PARAGRAPHS IN THE ORIGINAL JUDGMENT OF THE COURT. SETTING OF PARAGRAPHS BY THE APPELLANTS OF THEIR OW N IN THE JUDGMENT ENTAILED THE EXERCISE OF THE BRAIN WORK, READING AND UNDERSTANDI NG OF SUBJECT OF DISPUTES, DIFFERENT ISSUES INVOLVED, STATUTORY PROVISIONS APPLICABLE AN D INTERPRETATION OF THE SAME AND THEN DIVIDING THEM IN DIFFERENT PARAGRAPHS SO THAT CHAIN OF THOUGHTS AND PROCESS OF STATEMENT OF FACTS AND THE APPLICATION OF LAW RELEV ANT TO THE TOPIC DISCUSSED IS NOT DISTURBED, 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 CAREFUL CONSIDERATION, DISCERNMENT AND CHOICE AND T HUS IT CAN BE CALLED AS A LITERARY WORK OF AN AUTHOR. CREATION OF PARAGRAPHS WOULD OBV IOUSLY REQUIRE EXTENSIVE READING, I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 8 OF 11 CAREFUL STUDY OF SUBJECT AND THE EXERCISE OF JUDGME NT TO MAKE PARAGRAPH WHICH HAS DEALT WITH PARTICULAR ASPECT OF THE CASE, AND SEPARATING INTERMIXING OF A DIFFERENT SUBJECT. CREATION OF PARAGRAPHS BY SEPARATING THEM FROM THE PASSAGE WOULD REQUIRE KNOWLEDGE, SOUND JUDGMENT AND LEGAL SKILL. IN OUR OPINION, THI S EXERCISE AND CREATION THEREOF HAS A FLAVOUR OF MINIMUM AMOUNT OF CREATIVITY. THE SAID P RINCIPLE WOULD ALSO APPLY WHEN THE EDITOR HAS PUT AN INPUT WHEREBY DIFFERENT JUDGES' O PINION HAS BEEN SHOWN TO HAVE BEEN DISSENTING OR PARTLY DISSENTING OR CONCURRING, ETC. IT ALSO REQUIRES READING OF THE WHOLE JUDGMENT AND UNDERSTANDING THE QUESTIONS INVOLVED A ND THEREAFTER FINDING OUT WHETHER THE JUDGES HAVE DISAGREED OR HAVE THE DISSENTING OP INION OR THEY ARE PARTIALLY DISAGREEING 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 JUD GMENTS REPORTED IN SCC, THE APPELLANTS HAVE A COPYRIGHT AND NOBODY IS PERMITTED TO UTILIZE THE SAME. 9. IT IS CLEAR THAT EVEN THE GOVERNMENT I.E. CBDT H AS RECOGNISED ASSESSEES WORK BY AWARDING HIM PRATYAKSH KAR SAHIT YA PURUSKAR ON HIS HINDI EDITION OF THE SAME BOOK AS SECOND BEST LITER ARY WORK ON INCOME TAX IN HINDI. IT IS A FACT THAT THE ASSESSEE HAS A UTHORED THIS BOOK ON INCOME TAX PROBLEMS IN QUESTION ANSWER FORM. HIS BO OK IS ON A COMPLEX ISSUE WHICH REALLY NEEDS INTELLECT AND KNOWLEDGE. H E HAS RECEIVED ROYALTY ON THE SAME. THE WORD LITERARY WORK HAS BEEN DEFIN ED BY THE LAW DICTIONARY ADVANCE LAW LEXICON, EDITED BY JUSTICE Y. V. CHANDRACHUR, FORMER CJI IN 3 RD EDITION OF VOLUME 3 AS UNDER: LITERARY AND ARTISTIC WORK IN THE INTERNATIONAL C OPYRIGHTS ACT, 1886, UNLESS THE CONTEXT OTHERWISE REQUIRES, MEANS EVERY BOOK, PRINT, LITHOGRAPH, ARTICLE OF SCULPTURE, DRAMATIC PIECE, M USINDIAN 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 WHI CH ARE DEFINED AS WORKS, OTHER THAN AUDIOVISUAL WORK, EXPRESSED IN WO RDS, NUMBERS, OR OTHER VERBAL OR NUMERIC SYMBOLS OR INDICIA, REGARDL ESS 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 AND INCLUDES CATALOGUES AND DI CTIONARIES, SIMILAR FACTUAL, REFERENCE OR INSTRUCTIONAL WORKS, COMPILAT IONS OF DATA, COMPUTER DATA BASES, AND COMPUTER PROGRAMS. I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 9 OF 11 10. FROM THE ABOVE FACTS AND CIRCUMSTANCES OF THE C ASE, THE DEFINITIONS AND THE PRECEDENTS OF HONBLE SUPREME COURT AND KER ALA HIGH COURT, CITED SUPRA, WE ARE OF THE VIEW THAT THE ASSESSEES AUTHORED BOOK IS A LITERARY WORK IN TERM OF SECTION 80QQB OF THE ACT A ND ACCORDINGLY, ASSESSEE IS ENTITLED TO DEDUCTION U/S. 80QQB OF THE ACT. THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED. 11. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS, W HETHER THE ASSESSEE CAN BE TREATED AS OWNER OF THE PROPERTY IN THE ABSE NCE OF PROBATE OF THE WILL AND CONSEQUENTLY, NOTIONAL RENTAL INCOME CAN B E ASSESSED IN THE HANDS OF THE ASSESSEE? FOR THIS ASSESSEE HAS RAISED THE FOLLOWING GROUND NO. 4:- 4. FOR THAT UPON FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS NOT JUSTIFIED IN TREATING THE ASSESSEE AS THE OWNER OF THE HOUSE PROPERTY DESPITE THE FACT THAT THE WILL FROM WHICH THE HOUSE WAS TO BE INHE RITED WAS NOT PROBATED AND THEREBY DISALLOWING DEDUCTION U/S. 54F AMOUNTING TO RS.29,425/- AND ASSESSING A NOTIONAL INCOME OF RS.48,000/- UNDER THE HEAD HOUSE PROPERTY. 12. WE HAVE HEARD RIVAL CONTENTION OF THE ASSESSEE AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM T HE CASE RECORDS THAT THE AO NOTED FROM THE BALANCE SHEET OF THE ASSESSEE THAT IT HAS INCLUDED ONE HOUSE PROPERTY IN THE BALANCE SHEET, WHICH WAS INHERITED FROM HIS LATE MOTHER SITA DEVI LOYALKA, WHO EXPIRED ON 08.07 .1998. ACCORDING TO AO, THE ANNUAL VALUE OF THE HOUSE PROPERTY @ RS.400 0/- PER MONTH IS TO BE COMPUTED FOR THE PURPOSE OF CHARGING OF TAX AND ACCORDINGLY, HE ASSESSED RS.48,000/- AS INCOME FROM HOUSE PROPERTY. THE ASSESSEE CLAIMED BEFORE THE AO THAT HE HAS GOT THIS PROPERTY AS PER THE WILL OF HIS LATE MOTHER BUT THE WILL HAS NOT YET BEEN PROBATED AND ACCORDINGLY, NO NOTIONAL INCOME CAN BE ADDED TO THE INCOME OF THE A SSESSEE. AGGRIEVED, AGAINST THE ACTION OF AO, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). THE CIT(A) ALSO CONFIRMED THE ACTION OF AO. AGGRIEVED, ASSESSEE PREFERRED SECOND APPEAL BEFORE TRIBUNAL. 13. WE FIND FROM THE FACTS OF THE CASE THAT THOUGH THE ASSESSEE HAS DISCLOSED THE PROPERTY RECEIVED FROM MOTHER THROUGH WILL IN HIS BALANCE SHEET BUT CLAIMED THAT HE IS NOT OWNER AS THE WILL IS NOT PROBATED. THERE I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 10 OF 11 IS NO DOUBT THAT A WILL EXISTS AND IT HAS NOT BEEN PROBATED. THIS IS A CONCURRENT FINDING OF BOTH THE AUTHORITIES BELOW. IN SUCH CIRCUMSTANCES, WHEN THE WILL IS NOT GRANTED PROBATE, WHETHER NOTIO NAL INCOME CAN BE ASSESSED IN THE HANDS OF THE ASSESSEE. THIS ISSUE HAS BEEN ANSWERED BY HONBLE SUPREME COURT IN THE CASE OF MRS. HEM NOLIN I JUDAH (SINCE DECEASED) VS. MRS. ISOLYNE SAROJBASHINI BOSE & ORS. 1962 AIR 1471 (SC), WHEREIN HONBLE SUPREME COURT HELD AS UNDER: WHOSOEVER, WISHES TO ESTABLISH THAT RIGHT; WHETHER IT BE A LEGATEE OR AN EXECUTOR HIMSELF OR SOMEBODY ELSE WHO MIGHT FIND IT NECESSAR Y IN ORDER TO ESTABLISH HIS RIGHT TO ESTABLISH THE RIGHT OF SOME LEGATEE OR EXECUTOR FRO M WHOM HE MIGHT DERIVED TITLE, HE CANNOT DO SO UNLESS THE WILL UNDER WHICH THE RIGHT AS A LEGATEE OR EXECUTOR IS CLAIMED HAS RESULTED IN THE GRANT OF A PROBATE OR LETTERS O F ADMINISTRATION. THEREFORE, AS SOON AS THE APPELLANT WANTED TO ESTABLISH THAT MRS. MITT ER WAS THE LEGATEE OF DR. MISS MITTER AND WAS THEREFORE ENTITLED TO THE WHOLE HOUS E SHE COULD ONLY DO SO IF THE WILL OF DR. MISS MITTER IN FAVOUR OF MRS. MITTER HAD RESULT ED IN THE GRANT OF PROBATE OR LETTERS OF ADMINISTRATION. ADMITTEDLY THAT DID NOT HAPPEN AND THEREFORE S. 213(1) WOULD BE A BAR TO THE APPELLANT SHOWING THAT HER MOTHER WAS TH E FULL OWNER OF THE PROPERTY BY VIRTUE OF THE WILL MADE IN HER FAVOUR BY DR. MISS M ITTER. THE DIFFERENCE BETWEEN A RIGHT CLAIMED AS A LEGATEE UNDER A WILL AND A RIGHT WHICH MIGHT ARISE OTHERWISE IS CLEAR IN THIS VERY CASE. THE RIGHT UNDER THE WILL WHICH WAS CLAIMED WAS THAT MRS. MITTER BECAME THE OWNER OF THE ENTIRE HOUSE. OF COURSE WI THOUT THE WILL MRS. MITTER WAS AN EQUAL HEIR WITH HER DAUGHTERS OF THE PROPERTY LEFT BY DR. MITTER, AS THE LATTER WOULD BE TAKEN TO HAVE DIED INTESTATE, AND WOULD THUS BE ENT ITLED TO ONE FOURTH. IT WILL BE SEEN FROM THE JUDGMENT OF THE HIGH COURT THAT IT HAS HEL D THAT THE APPELLANT IS ENTITLED TO THE ONE FOURTH SHARE TO WHICH MRS. MITTER WAS ENTIT LED AS AN HEIR TO DR. MISS MITTER AND GRANTED THE PLAINTIFF RESPONDENT A DECLARATION WITH RESPECT TO ONLY HALF THE HOUSE. THEREFORE, THE HIGH COURT WAS RIGHT IN HOLDING THAT S. 213 WOULD BAR THE APPELLANT FROM ESTABLISHING THE RIGHT OF HER MOTHER AS A LEGA TEE FROM DR. MISS MITTER AS NO PROBATE OR LETTERS OF ADMINISTRATION HAD BEEN OBTAI NED OF THE ALLEGED WILL OF DR. MISS MITTER IN FAVOUR OF MRS. MITTER. THE CONTENTION OF THE APPELLANT ON THIS HEAD MUST THEREFORE FAIL. 14. FROM THE ABOVE ADMITTED FACTS OF THE CASE THAT THE WILL IS NOT PROBATED AND PRECEDENT CITED, WE ARE OF THE VIEW TH AT NO NOTIONAL RENT CAN BE ASSESSED IN THE HANDS OF THE ASSESSEE WHILE COMPUTING INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPE RTY BECAUSE THE ASSESSEE IS NOT THE OWNER OF THE HOUSE PROPERTY. AC CORDINGLY, WE DELETE THIS ADDITION AND ALLOW THIS ISSUE OF ASSESSEES AP PEAL. 15. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AS REGARD TO ADOPTION OF MUNICIPAL VALUE OF THE HOUSE PROPERTY RECEIVED BY A SSESSEE THROUGH WILL. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.5 : I.T.A. NO.: 536/ KOL/2013 ASSESSMENT YEAR : 2005-2006 PAGE 11 OF 11 5. WITHOUT PREJUDICE TO GROUND NO. 4 THE LD. CIT(A) DID NOT CONSIDER THE MUNICIPAL VALUE OF THE HOUSE PROPERTY OF RS.6140 AND ACCEPTED THE ARBITRARY ANNUAL VALUE OF RS.48,000/-. 16. AT THE OUTSET, WE FIND THAT SINCE WE HAVE ADJUD ICATED THE ABOVE ISSUE REGARDING OWNERSHIP IN FAVOUR OF ASSESSEE AND AGAINST REVENUE, THIS ISSUE AUTOMATICALLY BECOMES INFRUCTUOUS AND DISMISS ED. 17. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4TH DECEMB ER, 2015. SD/- SD/- WASEEM AHMED MAHAVIR SINGH (ACCOUNTANT MEMBER (JUDIC IAL MEMBER) KOLKATA, THE 4TH DAY OF DECEMBER, 2015 COPIES TO : (1) DILIP LOYALKA, 16, MANGO 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) CIT(A), ASANSOL, (4) CIT (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.