Income Tax Appellate Tribunal - Kolkata
Dilip Loyalka, Kolkata vs Assessee on 8 July, 2016
I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4
Assessment years: 2007-2008, 2008-2009 & 2009-2010
Page 1 of 6
IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'A(SMC)' BENCH, KOLKATA
Before Shri P.M. Jagtap, Accountant Member
I.T .A. Nos. 22, 1514 & 2286 /KOL / 2014
Assessment Years: 2007-2008, 2008-2009 & 2009-2010
Dilip Loyalka,.....................................................................Appellant
16, Mangoe Lane,
1 s t Floor,
Kolkata-700 001
[PAN : ABAPL 9750 D]
-Vs.-
Assistant Commissioner of Income Tax,.... ........................Respondent
Circle-1, Asansol,
Parmar Buildin g, G. T. Ro ad (West),
Asansol-713 304
Appearances by:
Shri Dilip Loyalka, C .A., fo r the assessee
Shri R.K. Kureel, JCIT, D.R., for the Department
Date of concluding th e hearing : Ju ne 10, 2016
Date of pronouncing the order : Ju ly 8, 2016
O R D E R
These three appeals filed by the assessee are directed against three separate orders dated 22.11.2013, 19.05.2014 and 02.12.2014 passed by the ld. Commissioner of Income Tax (Appeals), Asansol for the assessment years 2007-08, 2008-09 and 2009-10 respectively and since the solitary common issue is involved therein relating to the assessee's claim for deduction under section 80QQB, the same have been heard together and are being disposed of by this single consolidated order.
2. The assessee in the present case is an individual, who is a Chartered Accountant by profession. In the returns of income filed for the years under consideration, deduction under section 80QQB amounting to Rs.2,74,374/-, Rs.1,78,875/- and Rs.1,80,000/- was claimed by him for A.Y. 2007-08, 2008-09 and 2009-10 respectively. The said deduction was I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4 Assessment years: 2007-2008, 2008-2009 & 2009-2010 Page 2 of 6 claimed on account of royalty income received by the assessee from the publisher, namely 'Book Corporation' for the book namely "How to Handle Income Tax Problems" co-authored by him. During the course of assessment proceedings, the claim of the assessee for deduction under section 80QQB was examined by the Assessing Officer and on such examination, he disallowed the same in all the three years under consideration for the following reasons:-
"The assessee has co-autho red income t ax relat ed book namely "How to handle Inco me Tax Pro blems" . The book contains expl anat ions related with procedural and subst antive laws sometimes with reference to case laws of various High Courts and Supreme Court and legal aspect s of different issues under the Inco me T ax Act , 1961 and Inco me Tax Rules, 1962 in question answer format . The assessee quoted many case l aws and int erpreted different pro visions of Income Tax Act and Rules. So no imaginative, creative or artistic sk ill is involved there. The book do es not pro vide any original work of literat ure but a mere reproduct ion of income t ax queries in a Simplistic manner. This book acts as a guide book for inco me tax assessees Hence it can be called a guide book for income tax assessees and not a work of artistic, scientific o r iiterary nat ure" .
3. The disallowance made by the Assessing Officer on account of hi s claim for deduction under section 80QQB for all the three years under consideration was challenged by the assessee in the appeals filed before the ld. CIT(Appeals). After considering the submissions made by the assessee and perusing the relevant material available on record, the ld. CIT(Appeals) found that a similar issue raised by the assessee relating to deduction under section 80QQB for A.Y. 2005-06 was decided by him vide his appellate order dated 11.02.2013 against the assessee thereby confirming the disallowance made by the Assessing Officer on account of assessee's claim for deduction under section 80QQB. Following the said decision rendered for A.Y. 2005-06, the ld. CIT(Appeals) confirmed the disallowance made by the Assessing Officer under section 80QQB for all the three years under consideration and dismissed the appeals filed by the assessee on this issue. Aggrieved by the orders of the ld.
I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4 Assessment years: 2007-2008, 2008-2009 & 2009-2010 Page 3 of 6 CIT(Appeals), the assessee has preferred these appeals before the Tribunal.
4. I have heard the arguments of both the sides and also perused the relevant material available on record. As agreed by the ld. representatives of both the sides, the solitary common issue involved in these appeals of the assessee relating to his claim for deduction under section 80QQB is squarely covered by the decision of the Division Bench of this Tribunal in assessee's own case for A.Y. 2005-06 rendered vide its order dated December 4, 2015 in favour of the assessee passed in ITA No. 536/KOL/2013. A copy of the said order is placed on record before me and perusal of the same shows that a similar claim of the assessee for deduction under section 80QQB on account of royalty income received for the book, namely "How to Handle Income Tax Problems", has been allowed by the Tribunal after discussing all the relevant aspects in paragraph nos. 7, 8 & 9 of its order, which read as under:-
"7. The word literary work has not defined under the Act but has been defined by sect ion 2(0) of the Copyright Act , 1957. The expression literary work covers which are expressed in printing or writing irrespective of the quest ion whether th e qualit y o r style is high o r whet her there is any literary merit or not. Th e expression literary work means not only such work wh ich deals with any particul ar aspect of literature in poetry but also indicates a work wh ich is lit erature. i.e. anything in writing which could be said t o come within the ambit of literary work . Hon'ble Kerala High Court has dealt on this issue i n the case of Infoseek Solutions & Anr. Vs. Kerala Law times (2007) 34 PTC 231 (Ker) and observed that a l aw report is a composite document and it s h ead notes, editorial comments, footnotes, setting, layout, presentation etc. And even the skill and labour involved in choosing as to whether a judgment should be reported is a literary work leading to the report er and publisher acquiring co pyright o ver such repo rt, as a composit e documents including the text o f the judgment as so published by the reporter.
8. Similarly, Hon'ble Supreme Court in the case of Eastern Book Company & Ors. Vs. D. B. Modak & Anr. (2 008) 95 AIR 809 (SC) has also adjudicat ed identical issue and h eld that Affirming th e above view the Apex court held that not onl y the head notes and short notes are literary work s but even th e judgments cit ed by I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4 Assessment years: 2007-2008, 2008-2009 & 2009-2010 Page 4 of 6 the law reporters by (i) segregating the existing paragraphs in the original t ext by breaking them into separate paragraphs; (ii) adding int ernal paragraph numbering wit hin a judgment after pro viding uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented o r concurred by int roducing the ph rases lik e 'concurring', ' partly concurring', ' dissenting', 's upplementing', 'majorit y expressing no opinio n' etc. h ave to be viewed in a different light . Hon'ble Supreme Court further explained the literary work in term of legal disco urse that the task of paragraph numbering and int ernal referencing requires skill and judgment in great measure. The edit or who inserts para numbering must know how legal argument ation and legal discourse is conducted and how a judgment of a court of law must read. Oft en legal arguments o r conclusions are either clubbed into one paragraph in th e original judgment or parts of the same argument are given in separate paragraph s. It requires judgment and the capacity fo r discernment fo r determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraph s in the o riginal judgment of the court . Setting of paragraph s by the appellants of their own in the judgment entailed the exercise of the brain work, reading and underst anding of subject of disput es, different issues involved, statuto ry provisions applicable and 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 relevant to th e topic discussed is not dist urbed, would require full underst anding of the entire subject of the judgment. Making paragraphs in a judgment co uld not be called a mechanical process. It requires carefuI consideration, discernment and choice and thus it can be called as a literary work of an author. Creat ion of paragraphs would obviousl y require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particul ar aspect of the case, and separating int ermixing of a different subject . Creation of paragraph s by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creat ion thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby different J udges' opinion has been shown to have been dissent ing or partl y dissenting or concurring, etc. It also re quires reading of the whole judgment and underst anding t he questions involved and thereafter finding out whether th e Judges have disagreed o r have the dissenting opinio n or they are partially disagreeing and partially agreeing to the view on a particular law point o r even on facts. In these input s put in by the appellant s in the judgments repo rted in SCC, the appellants have a copyright and nobody is permitted t o utilize the same.
9. It is clear that even the government i.e. CBDT h as reco gnised assessee's work by awarding him Pratyaksh Kar Sahitya I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4 Assessment years: 2007-2008, 2008-2009 & 2009-2010 Page 5 of 6 Puruskar o n his Hindi Edit ion of the same book as second best literary work on Income Tax in Hindi. It is a fact th at the assessee has authored this book on inco me t ax problems in question answer fo rm. His book is on a complex issue which really needs int ellect and knowledge. He has received royalty on the same. The word literary work h as been defined b y the Law Dictionary "Advance Law Lexico n, edit ed by Justice Y. V. Chandrach ur, former CJI in 3rd Editio n of Volume 3" as under:
"Literary and artistic work in the Int ernational Copyrights Act , 1886, 'unless the context otherwise requires, means every book, print, lit hograph, article of sculpt ure, dramatic piece, musIndian Copyright Act composition, painting, drawing, photograph and other work of literature and art to which the Copyright s Acts or the Int ernational Copyrights Acts, as th e case requires extends."
"Copyright protection extends to literary work s which are defined as works, other than audiovisual work, expressed in words, numbers, or other verbal or numeric symbols or indicia, regardless of the nature of the material objects, such as books periodicals, manuscripts, phone reco rds, fil ms, tapes, disk s or cards in which they are embodied. The term 'literary work' does not connote any criterion of literary merit or qualit ative value and includes catalogues and dictionaries, similar factual, reference or instructional works, compil ations of dat a, computer dat a bases, and comput er programs."
5. As the issue involved in the years under consideration as well as all the material facts relevant thereto are similar to A.Y. 2005-06, I respectfully follow the decision rendered by the Tribunal in assessee's own case for A.Y. 2005-06 and delete the disallowance made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on account of assessee's claim for deduction under section 80QQB.
6 In the result, the appeals of the assessee are allowed.
Order pronounced in the open Court on July 8, 2016.
Sd/-
(P.M. Jagtap) Accountant Member Kolkata, the 8 t h day of July, 2016 I . T. A . N o s . 2 2 , 1 5 1 4 & 2 2 8 6 / KO L . / 2 0 1 4 Assessment years: 2007-2008, 2008-2009 & 2009-2010 Page 6 of 6 Copies to : (1) Shri Di lip Loyalka, 16, Mangoe Lane, 1 s t Floor, Kolkata-700 001 (2) Assistant Commissioner of Income Tax, Circle-1, Asansol, Parmar Buildin g, G. T. Ro ad (West), Asansol-713 304 (3) Commissioner of Income Tax (Appeals), Asansol;
(4) Commissioner of Income Tax- , Kolkata;
(5) The Depart ment al Represent ative
(6) Guard File
By order
Assistant Registrar,
Income Tax Appellate Tribunal,
Kolkata Benches, Kolkata
Laha/Sr. P.S.