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Income Tax Appellate Tribunal - Mumbai

Harsha Bhogle vs Assessing Officer on 27 May, 2002

Equivalent citations: [2003]86ITD714(MUM)

ORDER

Behari Lal, Accountant Member This appeal of the assessee has been directed against the order of the CIT(A)-XXXV, Mumbai, dated 6-10-2000 for the assessment year 1997-98. The grounds of appeal taken up by the assessee reads as follows :

(i) On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in sustaining the Assessing Officer's rejection of the Appellant's claim under Section 80RR on the footing that the Appellant's case does not fall within the ken of Section 80RR.

(ii) On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) further erred in this connection in holding that the Appellant is not an 'artist' as postulated in Section 80RR.

(iii) On the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals) further erred in this connection in lending a restrictive and narrow meaning to the word 'artist' as being confined to creative arts, and in any event, grossly erred in holding that the Appellant's activity was not a creative art.

(iv) On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) further erred in this connection in rejecting the alternative claim of the Appellant that he is an 'actor' and in further holding that Appellant's activity does not constitute 'acting' as postulated in Section 80RR.

(v) The Appellant prays that it be held that the Appellant's case falls within the ambit and purview of Section 80RR, and consequently the claim of the Appellant for deduction under Section 80RR be upheld.

2. The assessee is in profession which is in the name and style of BHOGLE INFOTURF as propriety concern and declared professional income received from foreign sources along with income from other sources. The original return of income declaring total income of Rs. 7,47,026 was filed on 28-10-1997. The same was accompanied with computation of total income, certificate in prescribed Form No. 16A for tax deducted at source from interest on securities etc., receipts for payment of life insurance, audit report in presence room NOS. 3CC and 3C-E, copies or profit and loss account and balance sheet. Thereafter, revised return was filed on 15th March,1999. The reason for filing the revised return was stated to be to comply with the provisions of Section 80RR of filing certificates. The revised return was accompanied with copies of bank certificates received from Central Bank of India for foreign inward remittance.

3. During the course of assessment proceedings, the Assessing Officer observed that no certificate in Form No. 10H was furnished along with the return of income or with the revised return of income certifying that the deduction has been correctly claimed in accordance with the provisions of the Section 80RR. However, the assessee furnished a certificate in the prescribed Form 10H along with the copies of bank certificates on 23-10-1999 for claim under Section 80RR of. the Act, for professional income earned from foreign sources. The Assessing Officer has further stated that the assessee neither filed the certificate with the original return nor with the revised return which was necessary to avail of the benefit under Section 80RR. During the course of assessment proceedings, the assessee filed the certificate without the signature of the Bank Manager. The assessee, however, explained that he was entitled to the relief irrespective of the fact that the said certificate remained to be attached with the return or with the revised return. It was also submitted by the assessee that this requirement was introduced for the first time for the assessment year 1997-98 and therefore, the certificate was left out through oversight and even while filing the revised return on 15-3-1999. The Assessing Officer has also stated that the assessee in the foot note to the computation of income has mentioned that during the year, he has done radio programmes for the British Broadcasting Corporation (BBC) in the United Kingdom for which he received certain remuneration and by virtue of Article-18 of the Double Tax Avoidance Treaty, the said income was claimed exempt because the tax on the same was already deducted at source in the United Kingdom. In the return filed by the assessee, he has described the nature of business/profession as "Writer & Radio and Television Artist". It was also explained by the assessee that he was a programme compere on television. He mainly performed on television and thus a claim has been made that the assessee was an 'actor' or 'artist' performing on the television. In support of his claim, he referred to the dictionary meaning of the word 'actor' or 'an artist' or 'compere'. The assessee also submitted that to compere is an art which requires good oration quality which is not possessed by every one and therefore, he is an 'artist'.

4. The assessee also explained that his job was television presenter and commentator and submitted that the presenter is the face of the television who gives it an identity and represents the work of the rest of the crew. On the day before the match, besides conducting the interviews that go into the opening sequence, he goes around the city shooting capsules to be played during the telecast in tune with the movements of the cameraman in a tight sequence. This requires the presenter to be a talented scriptwriter as well and to have the sense of timing of a trained actor. In the live telecast itself, the presenter is given a well-defined running order between the sequence wherein he conducts interviews, gives information and holds the telecast together in the specified time. This highly skilled job requires a great presence of mind. Even while presenting, the presenter receives instruction from the Director and performs his job before play, between breaks and after close of pay. In between, he performs the job of commentator. He is also required to write scripts for specific programming inputs. To support his contention, the assessee filed photocopies of certain invoices and service certificates issued by the BBC of Inland Revenue, which shows the payment having been made to the assessee under the head 'Artist payments or foreign entertainers'. Another extract of the agreement with News Television (India) Pvt. Ltd., required the assessee to provide services for television game show.

5. After going through the factual data furnished by the assessee, the Assessing Officer observed that the assessee was a commentator/presenter for which he received certain payment. He acted as an entertainer on BBC for which he was made payment and the said payment has been termed by the BBC under the head "Artists Payment". The Assessing Officer has thus stated that the nomenclature of the payment or the head under which a particular payment gets clarified would not convert gram into chaffe. According to him, by no stretch of imagination can such a classification of payment would turn a non-artist into an artist. The Assessing Officer also noticed from the agreements produced before him by the assessee that the basic job of the assessee was to perform as Commentator/Presenter. Thus according to the Assessing Officer, he worked as a host for the cricket programmes on television. He has also mentioned that in the cricket programmes, the actual performers are the cricketers themselves and it is basically the performances or its ramification which are to be commented upon. Just as these cricketers cannot be called as Actors merely because their performance is being telecasted on television, the host who is commenting on the performance, even according to plan given to him, cannot be called as an actor or artist. According to him, a good commentator or presenter may be endowed with all the qualities of a good actor or blessed with the qualities of an artist, which may facilitate performance of his job, but this alone would not be sufficient to classify the commentator either as an actor or artist. The ability to perform or act may be an asset, but this would not alter the basic character of the job of the individual. The Assessing Officer has also stated that the Income-tax Act,1961 is silent so far as the word 'Artist' is concerned. He has further mentioned that even the various circulars issued by the CBDT referred by the assessee are of no help to cover such activities. According to the Assessing Officer, even the dictionary meaning referred by the assessee does not come to his rescue as commonly understood, an artist is a creator while an actor basically steps into the shoes of the character whose predetermined role is being enacted. Thus, the Assessing Officer considered the arguments advanced by the assessee as not convincing.

6. The Assessing Officer has also referred to the proviso to Section 80RR which specifically denies relief unless the certificate in the prescribed form is furnished along with the return of income in the prescribed manner. The Assessing Officer has pointed out that the assessee did not file the certificate along with the original return or with the revised return. The revised return was accompanied with the photocopies to show the foreign remittance, but there was no certificate as such filed with the return. According to the Assessing Officer, the certificate was filed on 23-10-1999 though the reference to the defects therein has already been made earlier. The assessee, however, submitted that he is entitled to the relief irrespective of the fact that the said certificate remained to be attached with the return or with the revised return. It was pointed out to the Assessing Officer that the assessee was under the relief that the certificate of foreign remittance which was enclosed with the said return, adequately substitute for Form No. 10H which has the same format for 10H and has been filed during the course of assessment proceedings and it has been urged that this being a beneficial provision, should be construed in its true spirit and liberally and that the relief should not be disallowed for technical default and that the delay may be condoned. The assessee also referred to the Circular No. 14, dated 11-4-1995 which stipulates that the Department should not take advantage of ignorance of an assessee as to his right. Further, reference was also made to the various decisions delivered in the context of Section 80J, Section 80-O and Section 80HHC wherein the requirement related to filing of certain reports/ certificates with the return of income and the non-filing thereof with the return of income was not held to be against the assessee in case it was filed subsequently during the assessment proceedings. It was stressed that filing Form No. 10H during the course of proceedings has been treated as sufficient compliance by the Courts in various decisions. In this connection, the assessee referred to the following decisions:

(i) CIT v. Shivanand Electronics [1994] 209 ITR 63' (Bom.)

(ii) CIT v. Gujarat Oil & Allied Industries [1993] 201 ITR 325 (Guj.)

(iii) CIT v. Hardeodas Agarwalla Trust[1992] 198 ITR 511 (Cal.)

(iv) CIT v. A.N. Arunachalam [1994] 208 ITR 4812 (Mad.)

(v) Berger Paints India Ltd. v. Dy. CIT [1992] 42 ITD 546 (Cal. )

(vi) Associated Stone Industries (Kotah) Ltd. v. Dy. CIT [1999] 68 ITD 312(Jp.).

The Assessing Officer has further stated that the assessee's reliance on the decisions referred to above is misplaced. According to him, " the admissibility of relief under Section 80HHC, under Section 80-O, under Section 80J etc., requires the filing of report of certificate, wherein the quantum of relief is separately worked out and is dependent on certain parameters which ought to be certified in addition. On the other hand, insofar as certificate under Section 80RR is concerned, the certificate in the prescribed format is merely to the effect that the deduction has been correctly claimed in accordance with the provisions. Thus according to the Assessing Officer, this certificate under Section 80RR has to confirm that the assessee is eligible for the admissible relief because he is an author, playwright, artist etc. Thus, the performance of the activity is also a relevant consideration which makes the relief under Section 80RR more objective than mechanical. It is for this reason that the proviso to Section 80RR cannot be on the same footing as in other cases referred to by the assessee, and which find mention in other section of Chapter VI-A. The Assessing Officer further observed that if the Legislature's intention was that the certificate under Section 80RR could be filed any time till the completion of the assessment, there was reason for the Legislature to mention it specifically rather than insisting on the proviso in the manner in which it was so enacted and brought into the statutes from the assessment year 1997-98. The Assessing Officer, thus, rejected the various contentions raised by the assessee and held that the assessee is not entitled to the relief under Section 80RR of the Income-tax Act as the assessee has not fulfilled the condition of eligible professional as envisaged in that section.

7. The learned CIT(A) has held that the assessee's profession as a 'commentator and presenter of cricket programme on TV' cannot be regarded as the profession of an 'artist' within the ordinary sense or dictionary meaning of the said word which defines (as per Concise Oxford Dictionary) an artist as a painter or a person who practices any of the 'arts'. According to him, the dictionary meaning of 'art' emphasizes human creative skill in various branches of creative activity concerned with the production of imaginative designs, sounds or ideas (e. g. painting, music and writing, considered collectively). The learned CIT(A) has thus observed that any specialized skill may be regarded as an 'art' provided it falls predominantly in the field of 'creative activity'. In the opinion of the learned CIT(A), in the profession of a commentator, presenter or anchor of a sports show on TV, the element of imaginative and creative activity is not predominant but incidental to the main function. Thus according to the learned CIT(A), even though any job done skillfully and imaginatively may involve some element of 'art', yet the performer per se would not become an 'artist'. The learned CIT(A) referred to the profession of cooking and teaching which may be considered as an art for some people but a cook or a teacher cannot be considered as artists by profession because their predominant function would not fall in the field of 'creative activity'. Similarly, a commentator or a presenter of the sports show on TV even though acting almost with artistic skill, is himself neither an artist nor an actor because his predominant activity is not 'creative art' or 'acting' but presenting some factual information, critical views and comments on the sport on show. Thus, the learned CIT(A) agreed with the views of the Assessing Officer that the assessee's activities as a commentator and presenter of cricket shows on TV did not tantamount to the profession of an 'artist' within the meaning of Section 80RR. He, therefore, confirmed the disallowance of the deduction claimed under Section 80RR of the Act.

8. At the time of hearing, the learned counsel for the assessee contended that this provision was introduced as an incentive to earn foreign exchange and therefore, it should be interpreted liberally. The learned counsel argued that the assessee is not only a cricket commentator but he has to take part in many other activities. He has to create scripts for commentary which gives history of earlier events also. He has also to act for entertaining the public. In this connection, he referred to pages 1 to 4 of the compilation filed by the assessee on 20th August,2001. In his letter dated November 18,1999 addressed to the Addl. CIT, Mumbai Range, Mumbai, the assessee explained that presenter of television programmes are treated on par with actors and other artists, in fact, they often represent a higher, more skilled form of work. The learned counsel took us through Document-1 (compilation page-2) and Document-2 (compilation page-4) for the definition of an artist. The Random House dictionary defines an actor as a person who acts on stage, in plays, motion pictures, television, broadcasts.... It has also defines an artist as an actor, singer, dancer or other public performer. The Word Book Dictionary defines an artist as 'a public performer' used synonymously with 'entertainer' and goes on to describe him as a 'person who does work with skill and good taste'. Thus, according to the learned counsel, the assessee falls in the category of someone who 'acts' on television or more pertinently, who is recognized as a professional performer on television or as a public performer. He also invited our attention to the CBDT Circular No. 675, dated 3-1-1994 which defines the photographers, cameramen, script writers and directors as artists. It has been explained that the assessee as a TV performer has to do a lot of work with precise scripting of the TV programmes. These scripts require, if anything, greater skill than those needed for television serials since they have to fit into a pre-edited programme in a very short period of time. The learned counsel also invited our attention to Document-4 (compilation page-6) which defines the meaning of presenter/commentator. It is a letter dated November 16,1999 from Trans World International. In this letter, the job of Shri Harsha Bhogle has been explained as follows:

His job required him to understand all artistic nuances of television production and deliver performances that were of the highest artistic standards. He was required to write scripts to fit specific situations. In television, timing is critical and these scripts had to be perfectly timed and delivered.

The learned counsel referred to Document-3 which is a statement from the Head of Production of Trans World International, an internationally reputed television production company based in the UK, which works with and supplies programmes to the leading networks of the world. It is mentioned on this statement that the assessee falls within the category of a television artist and scriptwriter; that it is part of the activities that leading presenters have to carry out. The learned counsel thus argued that this statement also confirms that the assessee often requires to enact live programmes. We were also taken through Documents-4,5,6, & 7 (compilation pages-6 to 11) which pertain to the extracts of various contracts signed by the assessee. It is contended that in these documents, the kind of words used are normally used in connection with actors and performers. Document-6 defines commentator as 'a person who has knowledge and experience in the media industry having worked in media and sports related activities and projects...". The learned counsel invited our attention to Document-7 (compilation page-11) and contended that the word 'artist' has been specifically mentioned on this document which is a voucher for payment to Shri Harsha Bhogle issued by the BBC. Similarly, he referred to Document-8 (compilation page-12) which is a tax deduction certificate issued by the Inland Revenue to Shri Harsha Bhogle and argued that Shri Bhogle is an entertainer as this fact has been specifically mentioned on the certificate issued by the Inland Revenue to foreign entertainers.

9. The learned counsel further referred to the provisions of Section 80RR of the Act and contended that particular stress has been put on the expression 'like an artist or actor' used in the section. He argued that the section was introduced in the statute to liberalise these provisions. He referred to the various amendments made in the section from time to time to give this section a broad meaning. He invited our attention to Circular No. 31, dated 25-10-1969 issued by the CBDT (compilation Vol. 2, page-22) wherein in para-2, it has been stated that artist includes photographers and TV news-film cameramen. He, thus, contended that Shri Bhogle is covered under the category 'photographers and TV news-film cameramen' and therefore, entitled to the benefits under Section 80RR of the Act. He, further, took us to the contents of Circular No. 675, dated 3-1-1994 (compilation page-23, Vol 2). In para-2 of this Circular, it has been mentioned "The Board has examined this matter and is of the view that a script writer can be regarded as 'playwright' and similarly 'director' can be treated as an 'artist' for the purposes of Section 80RR of the Act". The learned counsel also referred to the Explanation Notes of Circular No. 22, dated 17-7-1969 and Circular No. 281, dated 22-9-1981 (compilation pages-26 and 28 of Vol. 2) and argued that the provisions of Section 80RR of the Act are designed to encourage successful authors, playwrights, artists, musicians and actors in our country to project their activities outside India with a view to contributing to greater understanding of our country and its culture abroad and also augmenting our foreign exchange resources. The learned counsel argued to some of the professional activities coming within the scope of this section as mentioned in Circular No. 22 such as publication outside India of a book produced by author, contribution of articles to foreign journals and magazines, exhibition of paintings, sculptures and other works of art in foreign countries, giving music concerts to foreign audiences and acting in dramatic performances, cinematograph films and television programmes in foreign countries and contended that Shri Bhogle is covered by the activities of acting in dramatic performance, cinematograph films and television programmes in foreign countries.

10. The learned counsel also took us through the dictionary meanings of the word 'artist'. As per the Oxford English Dictionary, Second Edition, Volume-I, an artist has been defined as follows:

One skilled in the 'liberal' or learned arts, one who is a master of the liberal arts or a skilled performer, a proficient, a connoisseur.

As per the Webster's Third New International Dictionary (page-2 of compilation Vol. 2), an artist has been defined as follows:

One who professes and practices an art in which conception and execution are governed by imagination and taste broadly an adept skilful public performer or entertainer.

He also referred to the Random House Dictionary of the English Language (compilation page-4, Vol. II) and contended that artist means a public performer, one who exhibits exceptional skills in his work. The learned counsel referred to the Oxford English Dictionary, Second Edition, Vol. XI for the definition of 'Performer' (compilation page-7, Vol. II). According to this dictionary, performer means "One who performs a part in a play, a piece of music, athletic exercises, tricks etc., as a public exhibition of art or skill; one who gives or takes part in a performances or public entertainment, an actor, player, singer etc. " For the definition of performer, the learned counsel further referred to Webster's Third New International Dictionary (compilation page-9, Vol. II) which defines performer as follows:

of, relating to, or constituting an art (as drama) that involving public performance project an image of the U.S. through displays, films, publications, fine arts.

The learned counsel also argued that Shri Bhogle is an entertainer and to support his contention, he placed his reliance on the various dictionary meanings. The Webster's Third New International Dictionary has defined the entertainer as a person who entertain professionally or a public performance to be designed to direct or amuse (compilation page-11, Vol. II). The Random House Dictionary of the English Language, the Unbridged Edition has defined entertainer as a person who takes part in public entertainment or who takes part in an exhibition or performance of some kind (compilation page-13, Vol. II). Similarly, the Oxford English Dictionary, Second Edition, Vol. V has defined entertainer as a person who or that which furnishes amusement or one who gives public entertainment (compilation page-15, Vol. II). Thus according to the learned counsel, Shri Bhogle is a great entertainer and hence covered by the provisions of Section 80RR of the Act. The learned counsel also took us through the definition of 'Actor'. The Random House Dictionary of the English Language, the Unbridged Edition, has defined actor as "a person who acts in stage plays, motion pictures, television broadcasts etc., especially professionally" (compilation page-18, Vol. II). Similarly, as per the definition of the Oxford English Dictionary, Second Edition, Vol. I, an actor is one who acts or performs any action or takes part in any affair, a doer, a pleader, he who conducts an action at law, the plaintiff or complainant, an advocate in crime cases, a public prosecutor etc. (compilation page-20). Thus, according to the learned counsel, Shri Bhogle is an actor. Thus, the learned counsel contended that Shri Bhogle is performing three functions i. e. he is an artist, script writer and an actor. He also brought to our notice that Shri Bhogle won the award from Indian Academy as the best commentator.

11. Regarding the findings of the Assessing Officer that if Form No. 10H is not enclosed with the return, no deduction would be allowable, the learned counsel argued that along with the return does not mean with the return. He contended that the form was filed before the assessment was made. According to him, the form was prescribed in March 1997 and before that Form No. 10H was not there. Therefore, the Assessing Officer should not take advantage of assessee's ignorance. In this connection, the learned counsel invited our attention to the circular issued by the CBDT [2000] 243ITR (St. ) 56. The learned counsel also argued that when Section 80RR was brought on the statute, such TV programmes were not there. Therefore, updating is must in this case. In this connection, he referred to the following court cases:

(i) CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625 (SC)

(ii) Alembic Chemical Works Co. Ltd. v. CIT [1989] 177 ITR 377 (SC) The learned counsel argued that the Assessing Officer must also take into consideration the changing economic realities before considering the relief to be granted under Section 80RR of the Act. To support his contention, the learned counsel referred to the Supreme Court decision in the case of CBDT v. Aditya V. Birla [l988] 170 ITR 1373. He argued that rulars are binding on the departmental authorities. To support his view, he relied on the following court cases:

(i) UCO Bank v. CIT [1999] 237 ITR 889 (SC)

(ii) CIT v. Indra Industries [2001] 248 ITR 338 (SC) The learned counsel contended that a provision in a taxing statute granting incentives for promoting growth and development should be construed liberally. In this regard, he placed his reliance on the Supreme Court decision in the case of Bajaj Tempo Ltd. v. CIT [1992] 196 ITR 188.

12. So far as the additional ground regarding the levying of interest under Sections 234B and 234C is concerned, the learned counsel contended that the Assessing Officer has not applied his mind before charging the interest. In the assessment order, the Assessing Officer has simply mentioned 'charge interest as per the provision of law' which makes it clear that he has not applied his mind before charging such interest. To support his contention, the learned counsel placed his reliance on the following court cases:

(i) CIT v. Ranchi Club Ltd. [2001] 247 ITR 209 (SC)

(ii) Ranchi Club Ltd. v. CIT [1996] 222 ITR 44 (Pat.) Thus, the learned counsel contended that the Assessing Officer must be specific for charging the interest. Otherwise, his order for charging the interest would be invalid. Regarding the Supreme Court decision in the case of CIT v. Anjum M.H. Ghaswala [2001] 252 ITR 1, the learned counsel argued that the issue involved in that case is that whether the Settlement Commission can waive interest. He also invited our attention to page-7 of the above case and contended that the question whether interest was rightly charged was not before the Hon'ble Supreme Court. To support his contention, he invited our attention to the Supreme Court decision in the case of CIT v. Sun Engg. Works (P. ) Ltd. [1992] 198 ITR 297, especially to page-320 wherein the Hon'ble Court has referred their earlier decision in the case of Madhavrao Jivaji Rao Scindia Bahadur v. Union of India AIR 1971 SC 530 wherein the Supreme Court has cautioned at page-578 of AIR 1971 (SC) as follows:

It is not proper to regard a word or a clause or a sentence occurring in a judgment of the Supreme Court divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.

Thus according to the learned counsel, there should be a valid order even to charge mandatory interest. The learned counsel also referred to the decision of the Supreme Court in the case of Goodyear Iritiia Ltd. v. State of Haryana [1991] 188 ITR 402 especially to page 408 wherein the Apex Court has held that "A decision in a question which has not been argued cannot be treated as a precedent". The learned counsel also referred to the Gujarat High Court decision in the case of CIT v. Chunilal Khushaldas [1974] 93 ITR 369 and contended that precedent is an authority but before following the precedent, greatest possible care must be taken to follow the same.

13. The learned DR first took up the additional ground of the assessee pertaining to the charging of interest under Sections 234B and 234C of the Act and contended that the decision of the Patna High Court in the case of Ranchi Club Ltd. (supra) is not applicable to the facts of the present case because in the present case, the interest has been charged under the provisions of Sections 234B and 234C which is mandatory in nature. He argued that the Hon'ble Patna High Court has compared the notice of demand with a decree in a civil court which must follow the order. The learned DR invited our attention to the following court cases which were referred by the Patna High Court while deciding this issue:

(i) Monohar Gidway v. CIT [1983] 139 ITR 498 (Cal.)

(ii) CIT v. Namdang Tea Co. India Ltd. [1993] 202 ITR 414 (Gauhati)

(iii) CIT v. Wiliard India Ltd. [1993] 202 ITR 423 (Cal. ) According to the learned DR, the above cases pertain only to the charging of interest under Sections 139(8), 215, 216 & 217 of the Act. Therefore, the import of Sections 234B and 234C was never considered in these cases. He further pointed out that in the case of Monohar Gidway (supra), the High Court held that unless the order of assessment itself incorporates an order for the payment of interest, the assessee cannot be asked by means of simple demand notice to pay penal interest both under Section 139(8) and under Section 217 of the Act. In the case of Namdang Tea Co. India Ltd. (supra), the Gauhati High Court held where the Assessing Officer charged interest under Section 216 without being conscious of the fact that the power to charge interest was discretionary and charged interest on the assumption that he was bound to charge interest, he committed a serious error of law and the levy of interest under Section 216 was not valid. Similarly, in the case of Wiliard India Ltd. (supra), the Calcutta High Court deleted the interest charged under Section 216 on the ground that no speaking order was passed by the Income-tax Officer. The learned DR, thus, contended that the decision of the Patna High Court in the case of Ranchi Clubwas based on the above decisions which were pertaining to the charging of interest under Sections 139(8), 215, 216 and 217 of the Act which was discretionary but the charging of interest under Sections 234B and 234C is mandatory in nature. Thus, according to the learned DR, the provisions of Sections 234B and 234C have not been considered by the Patna High Court. The learned DR referred to the decision of the Karnataka High Court in the case of CIT v. Century Hotels (P.) Ltd. [1992] 197 ITR 282 wherein it has been laid down that the assessee should be given an opportunity of being heard before levying interest under Section 217 of the Income-tax Act for failure to file estimates of advance tax even where the assessment is concluded under Section 143(3) of the Act. Thus, the learned DR contended that passing an order for charging the interest was necessary under the old provisions of the Act when the levying of interest was discretionary but under the new provisions of Sections 234B and 234C, it is not necessary to pass a specific order before charging the interest because the Assessing Officer has not been left with any discretion to charge such interest. The learned DR, further, argued that the decision of the Supreme Court in the case of Kalyan Kumar Roy v. CIT [1991] 191 ITR 634 was perhaps not brought to the notice of the Lordship of Patna High Court in the case of Ranchi Club Ltd. (supra) wherein the Hon'ble Supreme Court has held that calculation of interest is a part of the order and assessment is complete and valid when both sheets are signed by the Assessing Officer. The learned DR, thus, contended that charging of interest under Sections 234B and 234C is mandatory and therefore, separate order for charging the same is not necessary. The learned DR also invited our attention to the decision of the Punjab and Haryana High Court in the case of Vinod Khurana v. CIT [2002] 253 ITR 578 wherein the Hon'ble High Court has held that if the same officer had passed the same day the assessment order and demand notice specifying the quantum of interest to be charged under Section 234B of the Act, the charging of interest was valid. Punjab and Haryana High Court relied on the decision of the Supreme Court in the case of Kalyan Kumar Roy (supra) and also referred to the cases of High Courts of Gauhati, Calcutta and Patna discussed earlier and also the Supreme Court decision in the case of Ranchi Club Ltd. (supra). Thus, the learned DR contended that levy of interest under Sections 234B and 234C is mandatory and the same is not appeasable. According to him, the levy of interest is automatic and the Assessing Officer is not empowered to waive it. Thus, charging of interest under Sections 234B and 234C does not require any specific order. The learned DR also challenged the additional ground as the same has not arisen out of the order of the CIT(A).

14. Regarding Form No. 10H, the learned DR contended that this ground was not taken up before the learned CIT(A). Therefore, the learned CIT(A) was not required to give any findings on this issue. According to him, Form No. 10H is a particular form mentioned in the Income-tax Rules. The learned DR pointed out that the certificate filed by the assessee was not containing the certificate mentioned in this particular Form No. 10H. He invited our attention to the Punjab and Haryana High Court in the case of CIT v. Jaideep Industries [1989] 180 ITR 81, wherein the High Court has held that the Tribunal was not right in holding that filing of the audit report under Section 80J(6A) during the assessment proceedings would satisfy the requirements of the said section. Thus, the learned DR was of the view that the requirement of filing the certificate mentioned in Form No. 10H along with the return was mandatory. The learned DR also referred to the Bombay High Court decision in the case of Shivanand Electronics (supra) wherein the Hon'ble High Court has held that no duty is cast on the ITO to inform the assessee who has failed to file a report, to file the same before rejecting the claim for relief. The court has also held that requirement of filing audit report 'along with the return of income' is not mandatory in the strict sense of the term but is only directory. The learned DR, thus, contended that the duty of the Assessing Officer was to consider the certificate mentioned in Form No. 10H if the same was filed along with the return but he was not duty bound to inform the assessee to file the same before rejecting his claim. The learned DR also argued that no condo nation of delay is granted in the statute. Therefore, the courts are obliged to do justice as per the provisions of law. Thus, according to the learned DR, the claim of the assessee under Section 80RR should not be admitted. In the alternative, the learned DR prayed that this issue may be sent back to the CIT(A) for consideration on merit.

15. Regarding the issue whether the assessee is an artist or not, the learned DR contended that the principle of rest judicator does not apply to income-tax proceedings. He invited our attention to the Supreme Court decision in the cases of Joint Family of Utahan Chinubhai v. CIT [1967] 63 ITR 416 and Dwarkadas Kesardeo Morarkav. CIT[1962] 44 ITR 529 wherein the Apex Court has held that "An assessment year under the Act is a self contained assessment period and a decision in one assessment year does not ordinarily operate as rest judicator in respect of the matter decided in any subsequent year, for the, Assessing Officer is not a court and he is not precluded from arriving at a conclusion inconsistent with his conclusion in another year. " The learned DR referred to the provisions of Section 80RR and also the Circular No. 675, dated 3-1-1994 of the CBDT and contended that the producer would not be entitled to the relief under Section 80RR as he does not fall under the definition of that section. The learned DR invited our attention to the decision of the Supreme Court in the case of Petron Engg. Construction (P.) Ltd. v. CBDT[1989] 175 ITR 523 which pertains to the provisions of Section 80-O of the Act and contended that earning foreign exchange is not enough to get the relief under Section 80RR. In this case, the Hon'ble Supreme Court has laid down that foreign exchange can be earned by various other modes, but that will not in all cases, entitle the assessee to a deduction of income-tax under Section 80-O. The learned DR, thus, argued that relief under Section 80RR would be available to the assessee if all the conditions laid down in the section are fulfilled. The learned DR also invited our attention to the various agreements filed by the assessee and contended that all these agreements are not entered with the foreign governments but had been signed in India with Indian Government. Therefore, the assessee is not entitled to relief on such agreements which have been signed in India with Indian Government. The learned DR invited our attention also to various documents relied upon by the assessee. He referred to Document-5 placed at page-7 of the first paper book and pointed out that the date of the agreement is not given, therefore, it cannot be said that it pertain to the period under consideration. Similarly, he pointed out that at page-9, the period mentioned is from 1999 onwards. Therefore, the same does not fall within the period pertaining to the assessment year 1997-98. He also referred to Document-5 (page-10 of the compilation) and pointed out that the agreement pertain to the Indian concerns, therefore, the question of giving relief under Section 80RR does not arise because the said section is applicable only to foreign state payments. The learned DR also made reference to Document-3, para-2 and contended that Section 80RR is not applicable to the producers. He pointed out that where the amount is partially received as producer of the programme, relief under Section 80RR is not allowable to that portion of the receipt. The learned DR also referred to the Supreme Court decision in the case of Continental Construction Ltd. v. CIT[1992] 195 ITR 81 to support his contention. The Hon'ble Supreme Court held "Where use outside India of information concerning industrial knowledge or skill and rendering of technical services is involved in composite foreign project, deduction is to be given to the extent of such use or rendering of technical services. In case of composite receipt, the duty of the Assessing Officer is to apportion the receipt and grant relief in relation to the portion attributable to such use or rendering of services. " So far as the definition of artist is concerned, the learned DR fully relied on the Border of the Assessing Officer.

16. In reply, the learned counsel contended that the appeal cannot be summarily rejected if the ground was not taken up before the CIT(A). To support his contention, the learned counsel placed his reliance on the Supreme Court decision in the case of CIT v. Calcutta Discount Co. Ltd. [ 1973] 91 ITR 8 wherein the Hon'ble Supreme Court has held that "Though the Tribunal be unduly influenced by procedural technicalities instead dealing with the substance of the matter, had erred in rejecting the appeal summarily because the appellate Asstt. Commissioner's conclusion was fully in accordance with law. " He, thus, contended that the certificate of Form No. 10H was signed by the Bank. This has also been certified by the Central Bank. Shri Bhogle has separately filed the certificate duly signed by him. He, therefore, contended that all the conditions mentioned in Form No. 1 OH had been fully complied with. Therefore, the delay in filing Form No. 10H along with the return should have been condoned. Regarding the contention of the learned DR that the ground regarding Form No. 10H was not taken up before the CIT(A), the learned counsel contended that the learned CIT(A) has discussed this issue in his order. He further argued that filing of Form No. 10H along with the return is only procedural and if the same is filed along with the revised return or before the assessment is completed, the relief under Section 80RR should not be denied merely on the ground that Form No. 10H was not filed along with the return. To support his contention, he placed his reliance on the Supreme Court decision in the case of CIT v. Mahendra Mills [2000] 243 ITR 56, and especially invited our attention to page-70 wherein the Hon'ble Supreme Court has laid down that "Once the revised return is filed under Section 139(5) of the Act, the original return is substituted by the revised return and consequently, the entries in the relevant column of the original return seeking depreciation could not be used for any purpose. It is, therefore, not open to the ITO to advert to the original return or statement filed along with it for the purpose of allowing deduction after such return was expressly withdrawn under the revised return. " At page 79 of the above judgment, the Hon'ble Court has held that "The ITO should advise the assessee not to claim depreciation if that course is beneficial to the assessee. " The learned counsel, thus, argued that the law laid down by the Bombay High Court in the cases of Shivan and Electronics (supra) and Jaideep Industries (supra) is not a good law. Regarding the condo nation of delay, the learned counsel argued that the question of condo nation would arise only when specific date is mentioned and that is not followed. In the present case, the specific date is not mentioned, hence, the question of condo nation does not arise. According to the learned counsel, Form No. 10H must be filed with the return and the same was with the return when the assessment was made, hence, the requirement was fully met with.

17. The learned counsel referred to the decision of the Patna High Court in the case of CIT v. Sitaram Bhagwandas[l976] 102 ITR 560 wherein the High Court has discussed the term along with the return with reference to Section 184 of the Act. The Hon'ble Court held as follows:

Having regard to the spirit and substance of the provisions regarding registration of firm in Section 184(7) of the Income-tax Act,1961, it is clear that the term 'along with the return of income' (as it stood before April 1,1971) is merely directory and not mandatory. The law must be construed as to not make it in any way illogical or ridiculous. All that the Legislature intended was that the return should be duly filed and that the declaration should be duly made and both the documents should be before the assessing authority at the time when he is applying his mind to the assessment of any particular firm. If he is then satisfied that the return had been duly filed and that there has been no change in the constitution of the firm and no change in the shares of the partners and the firm was registered during the previous year, then the necessary advantage of renewal conferred by subjection (7) of Section 184 must be undoubtedly follow to the assessee firm. The declaration could not be held to be invalid for the reason that it was not filed along with the return.

The learned counsel, therefore, contended that the assessee should not be denied the benefit of Section 80RR of the Act simply on the technical ground that the Form No. 10H was not filed along with the return. Form No. 10H was before the Assessing Officer when he made the assessment, therefore, the same should be considered as has been filed along with the return.

18. The learned counsel argued that even if the certificate is filed before the CIT(A) in case of failure on the part of the assessee to file it before the Assessing Officer, the assessee is entitled to special deduction. He referred to the decision of the J&K High Court in the case of CIT v. Trehan Enterprises 248 ITR 333 to support his contention. In this case, the Hon'ble High Court held that even in case of failure of the assessee to furnish requisite certificate under Section 80J and under Section 80HH before the Assessing Officer, the CIT(A) is competent to accept certificate and consider whether the assessee was entitled to special deduction. Regarding condo nation, he invited our attention to the Bombay High Court decision in the case of Bhartiya Engg. Corporation (P. ) Ltd. v. R.G. Deshpande, Addl CIT. [1981] 130 ITR 442 wherein the Hon'ble High Court held as follows:

The order of the commissioner was contrary to the assurance given by the CBDT to Public Accounts Committee for condo nation of delay, though not brought on record, had to be assumed to exist by reason of attitude to indicate by the government in its assurances to the Public Accounts Committee.

The learned counsel, thus, contended that the said requirement was introduced in law with effect from 1-4-1997 and due to oversight, the said certificate was not filed with the original return but the same was filed with the revised return and although the said certificate was in the same format as Form No. 10H, yet a fresh certificate in Form No. 10H was filed during the course of assessment proceedings before the Assessing Officer. He, therefore, pleaded that the benefit due under law should not be denied to the assessee merely on the ground of minor technical oversight.

19. The learned counsel referred to Document-6 and brought to our notice that the claim for the year is only regarding the remittance from foreign companies. Therefore, the contention of the learned DR that the claim has been made even where the agreement has been signed in India with Indian Government, is without any substance. The learned counsel also referred to Document-3, page-6 and contended that* the term producer used therein is not as used in Indian films. In the Indian films, the producer is only financing the film, but Mr. Bhogle is not only a producer but he is actor and presenter also. He is performing all the three functions himself. Referring to the Supreme Court decision in the case of Petron Engg. Construction (P. ) Ltd. (supra) relied upon by the learned DR, he contended that Shri Bhogle earned the foreign exchange from the foreign enterprises and he has also fulfilled all the conditions laid down in Section 80RR of the Act, therefore, he is entitled to full relief on the foreign exchange which he has received from the foreign enterprises and has brought to India.

20. So far as the interest under Sections 234B and 234C is concerned, the learned counsel argued that the law laid down in the case of Kalyan Kumar Roy (supra) was only procedural. He argued that the interest is an additional liability, hence separate order is required to charge the same. Regarding the Punjab & Haryana High Court decision in the case of Vinod Khurana (supra), he argued that even if the interest is mandatory, the Assessing Officer has to apply his mind and has to pass a separate order even to charge the mandatory interest. He reiterated his arguments that the issue is squarely covered with the Supreme Court decision in the case of Ranchi Club Ltd. (supra). He also referred to the Patna High Court decision in the case of Smt. Tej Kumari v. CIT [2001] 247 ITR 210 (FB) and contended that even if there are two decisions on the same issue, the later decision would prevail.

21. We have carefully considered the submissions made by the rival parties. We have also perused the various documents filed before us. The main issue for consideration in this case is whether the assessee is an 'artist' or an 'actor' for the purpose of deduction to be allowed under Section 80RR of the Act. In the return, the nature of business/profession of the assessee has been described as 'Writer, Radio and Television Artist'. He is also a programme compere on Television. Because the assessee is mainly performing on the television, therefore, a claim has been made by the assessee is an 'actor' or an 'artist'. To support his contention, the assessee referred to the dictionary meaning of the word 'actor' or 'artist' or 'compere'. The assessee also explained that his job is as television presenter/commentator and presenter is the face of the television who gives it an identity and represents the work of the rest of the crew. He has further elaborated his job by stating that on the day before the match, besides conducting interviews that go into the opening sequence, he also goes around the city shooting capsules to be played during the telecast in tune with the movement of Cameraman in a tight sequence. Thus, the assessee has claimed that this work requires the presenter to be a talented script writer as well and to have the sense of timing of a trained actor. He has further explained that at the time of telecast itself, the presenter is given a well-defined running order between the sequence wherein he conducts interview, gives information and hold the telecast together in the specified time. According to the assessee, it requires a great presence of mind. It is also stated that the assessee is also required to write scripts for the specific programme inputs. Thus, the assessee claimed that he is an 'artist' for the purpose of relief under Section 80RR of the Act. The Department, however, has contended that the basic job of the assessee was as a host for the cricket programmes on television. According to the Department, the assessee only gives his comments on the actual performance of the cricketers as per the plan given to him, therefore, he cannot be called as an 'actor' or 'artist'. The Assessing Officer, therefore, denied the relief to the assessee under Section 80RR on the ground that he is neither an 'actor' nor 'artist' but only a commentator on the television.

22. This section was inserted by the Finance Act,1969 with effect from 1st April,1970. Originally, the exemption was available only to authors, playwrights, artists, musicians and actors. The purpose of this section has been elaborated in Circular No. 22, dated 17th April,1969 as follows:

The Finance Act,1969 has inserted a new Section 80RR with effect from 1 April,1970, under which a resident individual being an author, playwright, artist, musician or actor who derives income in the exercise of his profession from foreign sources and receives such income in India or brings it into India in foreign exchange, will be entitled to deduct 25 per cent of the Income so received or brought in computing the total income. This provision is designed to encourage successful authors, playwrights, artists, musicians and actors in our country to project their activities outside India with a view to contributing to greater understanding of country and its culture abroad and also augmenting our foreign exchange resources. Some 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 and magazines, exhibition of paintings, sculptures and other works of art in foreign countries, giving of musical concert to foreign audiences and acting in a dramatic performance, cinematography films and television programmes in foreign countries.

Finance Act,1980 with effect from 1st April,1980 substituted the words 'musician, actor or sportsman (including athletes)" for the words 'musician or actor'. By Circular No. 31, dated 25-10-1969, the Board clarified that photographers and TV news film cameraman can be regarded as artist for the purpose of Section 80RR of the Act. The Board also examined and clarified that a script writer can be regarded as 'playwright' and similarly 'director' can be treated as an 'artist' for the purpose of Section 80RR of the Act. However, a producer would not be entitled to deduction under Section 80RR of the Act because he does not fall under any of the categories mentioned in the said section.

23. After going through the legislative history of this section and also the circulars issued by the CBDT in this connection, we find that the main object of this provision was to encourage successful authors, playwrights, artists, musicians, actors or sportsmen in our country to project their activities outside India with a view to contributing a greater understanding of our country and its culture abroad and also augmenting our foreign exchange resources. So, for the entitlement of relief under Section 80RR, two conditions must be fulfilled simultaneously firstly, the professionals mentioned in the said section must project their activities outside India with a view to contributing to greater understanding of our country and its culture abroad and secondly, augmenting our foreign exchange resources. In the present case, Shri Harsha Bhogle mainly performed on television and we do not find that his activities are making any contribution to the greater understanding of our country and its culture abroad. No doubt, he is augmenting the foreign exchange resources of our country but that is not enough to claim tax deduction under Section 80RR of the Act. It has been claimed that Shri Bhogle is an 'artist' or 'actor', therefore, he is entitled to the deduction under Section 80RR. The scope of an 'artist' or 'actor' has been well-defined in Circular No. 22, dated 17th July,1969 of the CBDT wherein it has been clearly mentioned that the provision is designed to encourage successful artists, actors etc., in our country to project their activities outside India with a view to contributing to greater understanding of our country and its culture abroad. Shri Bhogle is not making any contribution for the understanding of our country and its culture abroad. Radio programme and cricket commentary on the TV has nothing to do with the understanding of our country and its culture abroad. Shri Bhogle, no doubt, is a cricket commentator of world fame. He is one of the best orator and having perfect command on the English language but it does not make him an artist or an actor in the technical sense or scope for which these words have been used in Section 80RR. If the contention of the assessee is accepted, then all those persons who are engaged in collecting information from all over the world for the purpose of using the same on TV programmes would be entitled to the deduction under Section 80RR. This can never be the intention of the legislation to bring this provision on the statute. The statute is very clear that the object of this section is to bring greater understanding of our country and its culture abroad and also to encourage sportsmen and athletes to compete in international events.

24. We would now like to refer to the definition of 'Actor' and 'Artist'. As per The Concise Oxford Dictionary, Ninth Edition, 'Actor' is defined as (i) a person who acts a partin a play etc., (ii) a person whose profession is performing such parts, (iii) a person who pretends to be something he or she is not. In the present case, Shri Harsha Bhogle is not acting in any play. He is also not indulging in such profession. He is also not pretending something which in fact he is not. Shri Bhogle is a T. V. commentator of cricket matches. He is collecting the information regarding the performances of each player and is passing on the same to the public. Sometimes, he goes around the city in which the cricket match is going to be played and collects photos which information he shares with the public while giving commentary during the course of the match. Thus, collecting photographs from the various sights for public consumption, no doubt makes the commentary very interesting but while doing so, Shri Bhogle is not doing any acting. In fact, he is collecting information only for using the same during the course of cricket commentary. Shri Bhogle has been assigned the job of cricket commentary which he is performing to the best of his ability and knowledge. No doubt, he is an outstanding cricket commentator but while performing his duty, he is not doing any acting but he passing on to the public something which is infact actually happening during the course of the match. In addition to the cricket commentary, he also takes the public to some interesting sites of the city in which the cricket match is being played. Therefore, we are of the opinion that Shri Bhogle cannot be considered as an 'Actor' for the purpose of relief under Section 80RR of the Act. We have discussed in the earlier paragraphs, the relief under Section 80RR is granted to actors who project their activities outside India with a view to contributing to greater understanding of our country and culture abroad. Shri Bhogle is not indulging in any of the activities which would contribute to the greater understanding of our country and its culture abroad. Therefore, he is not entitled to relief under Section 80RR of the Act.

25. The term 'artist' has not been defined in the Act. Therefore, we would like to refer to its dictionary meaning. The Concise Oxford Dictionary, Ninth Edition has defined 'artist' as follows:

(i) a painter

(ii) a person who practices any of the arts

(iii) an artiste

(iv) a person who works with the dedication and attributes associated with an artist.

(v) a devotee; a habitual practiser of a specified activity.

In the present case, the assessee is not a painter. Shri Bhogle is also not practising any particular art. He is a commentator of cricket matches which has nothing to do with the term 'Arts'. He is also not an artiste because artiste is a professional performer i. e., a singer or a dancer. Shri Bhogle is neither a singer nor a dancer. Shri Bhogle is also not associated with an artist or a habitual practiser of a specified activity. Here, we would also like to refer to the definition of art given in the Concise Oxford Dictionary, Ninth Edition. It defines art as a human creative skill or its application or any other work exhibiting human creative skill. It further defines 'Art' as the various branches of creative activity concerned with the production of imaginatory designs, sounds or ideas such as painting, music, writing or any one of these branches. Thus 'Art' is a creative activity especially painting and drawing resulting in visual representation. This also defines 'Art' as a human skill or workmanship as opposed to the work of nature. This further defines art as these branches of learning associated with creative skill as opposed to the scientific, technical or vocational skills. Shri Bhogle is not doing any creative work. He is also not exhibiting any human skill. 'Artist' in the real sense has to indulge in various branches of creative activity concerned with the production of imaginative designs, sounds or ideas. For example, a painter or a sculptor has to imagine something in their mind and thereafter, whatever is created in their mind is put in practice to bring out some new painting or sculpture. Shri Bhogle is not imagining anything in his mind before the same is put into practice. He moves around the city and collects some pictures which are already in existence and thereafter, he displays those picture on the T. V. during the course of cricket match. For collecting such pictures one does not require any human creative skills. The work of Shri Bhogle is highly technical and requires only vocational skills which are opposed to creative skill. The definition of art, therefore, makes it abundantly clear that Shri Bhogle is not an 'Artist' but technically quite competent to make his vocation highly interesting for the public.

26. The learned counsel for the assessee argued that the provision was introduced as an incentive to earn foreign exchange and therefore, it should be interpreted liberally. In this connection, we would like to refer to Circular No. 22, dated 17th July,1969 of the CBDT wherein it has been clearly mentioned that this provision is designed to encourage successful authors, playwrights, artists, musicians and actors in our country to project their activities outside India with a view to contributing to greater understanding of our country and its culture abroad and also augmenting our foreign exchange resources. So, in order to interpret this provision liberally, the assessee must be one of the persons mentioned above. In the present case, the assessee is neither an actor nor an artist, as we have held in the aforesaid paragraphs. Therefore, the question of liberal interpretation in this case does not arise. Moreover, earning foreign exchange for the country is not the only condition for granting relief under Section 80RR. In addition to the receiving of foreign exchange, the person concerned has also to satisfy that his work is for the greater understanding of our country and its culture abroad. There is also no substance in the arguments of the learned counsel that Shri Bhogle is an actor because he performs on TV as professional performer. As we have explained in the aforesaid paragraphs, Shri Bhogle is not an actor because an actor is a person who acts in play or a person who pretends to be something which he or she is not. Shri Bhogle is a professional cricket commentator and he has nothing to do with acting. He is a commentator of cricket matches on television and for that purpose, he has to prepare the programme in advance such as scripting but that does not make him an actor. No doubt, Shri Bhogle is a very competent performer on the TV but it does not make him an actor or an artist, as we have defined in the earlier paragraphs. The learned counsel also referred to the provisions of Section 80RR and contended that stress has been put on the expression 'like an artist or actor'. He argued that after the introduction of this provision in the statute, certain amendments were made in this section from time to time to give this provision a broad meaning. In this connection, we would like to refer to Circular Nos. 22 and 31 issued by the CBDT (supra). The CBDT has specifically included the photographers and TV news-film cameraman in the category of artist but there is no mention of T. V. commentator of cricket matches in such circulars. The contention of the learned counsel that Shri Bhogle is covered under the category of photographers and T. V. news-film cameraman is without any substance. In fact, Shri Bhogle is a commentator on the TV for cricket matches. He is neither a photographer nor a TV news-film cameraman.

27. The contention of the learned counsel that Shri Bhogle falls in the category of playwright, producer and director also does not appear to be logical. In Circular No. 67, dated 3-1-1994, the terms 'playwright', 'director' and 'producer' have been used in connection with a film, Shri Bhogle cannot be considered as a playwright. He also cannot be considered as director and producer of the film. The job of Shri Bhogle is very much limited to gather the information regarding the various places in the city in which the cricket match is played and thereafter, to pass on this information to the public through the media of T. V. therefore, the contention raised by the learned counsel that Shri Bhogle falls in the category of playwright, producer and director of a film has no basis whatsoever. Regarding the contention of the learned counsel that the activities of Shri Bhogle are coming within the scope of acting in dramatic performances, cinematography films and TV programmes, we would like to mention that Shri Bhogle is neither indulging himself in any dramatic performance nor cinematography films nor in T. V. programmes in foreign countries. Shri Bhogle is only a TV commentator for cricket matches and to make his programme interesting, he collects certain information about the city in which the match is being played and passes on the same to the audience through the media of TV. We do not find any force in the arguments of the learned counsel that his activities are comparable with acting in dramatic performance, cinematography films and TV programmes in foreign countries. In view of the specific provisions of Section 80RR, the reference to TV programmes in foreign countries means the programmes which are connected with artists, musicians and actors. In our considered opinion, a commentator of cricket on TV has nothing to do with the artistic programme on TV in foreign countries. This section has been brought on the statute to encourage successful authors, playwrights, artists, musicians, actors and sportsmen and has nothing to do with the commentators of cricket matches on the television.

28. Regarding the reference by the learned counsel to the definition of artist given in Webster's II International Dictionary, we are of the opinion that Shri Bhogle is neither practising any profession or art in which conception and execution are governed by imagination and facts nor he is a skilful performer or entertainer as is envisaged in Section 80RR of the Act. Shri Bhogle is practising profession which does not require any particular skill or imagination. We do not understand what kind of special skill or imagination is required to collect information from a particular city where the cricket match is being played. No doubt, Shri Bhogle is well known for his oratory and command on the English language but his profession does not require any particular skill or imagination. This job can be trusted to anybody with proficiency in English and some knowledge about the game of cricket who would also perform this job with the same skill while collecting information from the various sites and also displaying the same on the T. V. Regarding the definition of artist in the Random House Dictionary of the English Language (unbridged edition), we do not agree with the learned counsel that Shri Bhogle is exhibiting exceptional skills in his work. This work of collecting information from the city in which the cricket match is being played and also displaying the same on the TV can also be trusted to some other person who would also perform the job with equal competence. Exceptional skill means that the same job cannot be done by somebody else. If the contention of the learned counsel is accepted as correct, then all those persons who are engaged in the commentary of cricket on TV would have to be considered as artists which could never the intention of the Legislature to bring this provision on the statute. This provision has been brought on the statute to encourage some successful authors, playwrights, artists musicians, actors and sportsmen (including athletes) in our country to project their activities outside India with a view of contributing to greater understanding of our country and its culture abroad.

29. The learned counsel also referred to the definition of performer as given in the Oxford Dictionary and Webster's III New International Dictionary. We do not find any relevance of these definitions to the issue under consideration. Shri Bhogle is not performing in any play. He is not indulging in any kind of music, athletic exercises, tricks etc. Webster's Dictionary makes it very clear that a performer must project an image of the U.S. through displays, films, publication of fine arts, etc. Shri Bhogle is not performing any of these jobs. The contention of the learned counsel that Shri Bhogle is a public performer is, therefore, without any basis.

30. The learned counsel also contended that Shri Bhogle is a public entertainer and to support his contention he invited our attention to the definition of public entertainer as we have mentioned in the earlier paragraphs. We do not find any force in the arguments of the learned counsel. Shri Bhogle is not an entertainer because he is not giving any public programme for entertainment. He is also not giving any amusement to the public. In fact, he is exhibiting the pictures or other sceneries which he collected from various places for public knowledge or information. He is only explaining the performance of each player while commenting on the T. V. Therefore, he is exhibiting information which cannot be compared with public entertainment. The learned counsel argued that Shri Bhogle also an actor and he has supported his argument with the definition of actor as given in the dictionaries (supra). The definition of an actor given in the dictionaries does not support the contention of the learned counsel that Shri Bhogle is an actor. These definitions covers every body who is doing some action. This cannot be the spirit of the provisions in Section 80RR which gives relief only to such actors who are possessing qualities of an artist. We have already discussed in detail about the definition of an actor in earlier paragraphs and we have concluded that Shri Bhogle is not an actor. The reference made by the learned counsel that Shri Bhogle was awarded by the Indian Academy for the best commentator has no relevance to the provisions of Section 80RR. We do agree with the learned counsel that Shri Bhogle is an outstanding commentator but this does not help him to get the relief under Section 80RR. It is given only to those persons mentioned in the section. The learned counsel also argued that Shri Bhogle is not the producer as mentioned in Circular No. 31, dated 25-10-1969. According to him, the word 'producer' in the Circular refers only to the producer of Indian films who is only financing the films. But in the present case, Shri Bhogle is a producer, actor and presenter i. e., all three in one. We do not find any force in the arguments of the learned counsel. The word 'producer' has been used in the circular and it has not made any distinction between the producer who is financing the film and other producers who are also actors and presenters. In view of the aforesaid discussion, we are of the considered opinion that Shri Bhogle is not entitled for any relief under Section 80RR of the Act.

31. The next issue is regarding the filing of Form No. 10H along with the return. The assessee submitted that the year under appeal was the first year in which the said requirement was introduced in law, with effect from 1-4-1997 and due to oversight, the said certificate was not filed with the original return. The certificate of foreign inward remittance was filed with the revised return and although the said certificate was in the same format as Form No. 10H, yet a fresh certificate in Form No. 10H was filed during the course of assessment proceedings before the Assessing Officer. Thus, the learned counsel contended that the benefit due under law should not be denied to the assessee merely on the ground of minor technical oversight. The certificate of foreign inward remittance and Form No. 10H was filed by the assessee during the course of assessment proceedings. It is true that Form No. 10H was not filed along with the original return but a certificate from the Central Bank duly signed by the Manager was filed with the revised return. Therefore, the assessee should not be denied the benefit of Section 80RR mainly on the ground that Form No. 10H was not filed with the return. Moreover, the Department should also keep in view that the requirement was introduced for the first time in the assessment year 1997-98 and, it may be due to oversight, the certificate was not filed along with the original return. In the case of Jaideep Industries (supra) relied upon by the learned DR, the Punjab & Haryana High Court held that there can be no escape from the conclusion that requirement of audit report being filed along with the return of income was mandatory. Patna & Calcutta High Courts in the cases of Sitaram Bhagwandas (supra) and CIT v. Universal Trading Co. [1978] 114 ITR 412 (Cal. ) held that report can be filed with revised return. Madras High Court in the case of A.N. Arunachalam (supra) held that the report can be filed at any stage up to assessment. Bombay High Court in the case of Shivanand Electronics (supra) held that 'For the purpose of claiming relief under Section 80J(A), filing of audit report before the ITO is mandatory, but filing the audit report along with the return is not mandatory. If in a given case, an assessee fails to file such report along with the return but files it subsequently before completion of assessment, it would not be fatal to the claim of the assessee and the ITO will have the power to accept the same if he is satisfied that the delay in filing the same was for good and sufficient reasons. This does not, however, mean that an assessee as a matter of right, can submit such report at anytime before the completion of the assessment, and if it is so submitted, the ITO is bound to accept the same. ' In view of the Bombay High Court decision, Form No. 10H has to be filed along with the return. For the purpose of claiming relief under Section 80RR, filing Form No. 10H before the Assessing Officer is mandatory but filing the form along with the return is not mandatory. But the Hon'ble High Court has further laid down that it is not a matter of right of the assessee to submit the report at any time before the completion of assessment. In view of the High Court decision, we are of the opinion that the Assessing Officer will have the power to accept the same if he is satisfied that the delay in filing the same is for good and sufficient reasons. In the present case, Form No. 1OH was not filed along with the return, even with the revised return, the assessee filed only a certificate of foreign inward remittance. The only reason given by the assessee for not filing the Form No. 10H with the original return was that the requirement for filing Form No. 1OH was introduced with effect from 1-4-1997 which is relevant to the assessment year under consideration. This may be a good and sufficient reason for not filing the Form No. 10H with the original return. But there cannot be a good and sufficient reason for not filing the same with the revised return. But the fact remains that the assessee filed a certificate of foreign inward remittance duly signed by the Bank Manager with the revised return though the certificate was not on Form No. 10H but was containing the necessary information which was required to be filed on Form No. 10H. The assessee also filed Form No. 10H at the time of assessment. In our opinion, there is sufficient compliance of the requirement of filing Form No. 10H. The contention of the learned DR that this issue was not taken up before the learned CIT(A), therefore, the same cannot be taken up before the Tribunal is without any substance, because the learned CIT(A) has discussed this issue in his order and must have also considered the same on merits. In view of the facts and circumstances of this case, we do not find any justification in rejecting the claim of the assessee under Section 80RR on the ground that Form No. 10H was not filed along with the return. We have, however, held in the earlier paragraphs that the assessee is not entitled for deduction under Section 80RR of the Act. Therefore, discussion on Form No. 10H is only academic and it would not help the assessee to get the deduction under Section 80RR of the Act.

32. So far as the additional ground is concerned, the learned counsel argued that interest under Section 234B and under Section 234C cannot be charged unless there is a specific order by the Assessing Officer. He pointed out that the Assessing Officer has made mention in his order as follows:

Charge interest under Sections 234A,234B and 234C as applicable.

The learned counsel, therefore, contended that. "as applicable" means that the Assessing Officer has not applied his mind for charging the interest. He further pointed out that no interest was chargeable under Section 234A but the Assessing Officer has also made the mention of this section in his order which clearly supports the view that he has not applied his mind before charging the interest. Therefore, according to him, interest under Sections 234B & 234C cannot be charged. The Department, however, is of the view that charging of interest under Sections 234B & 234C is mandatory and the Assessing Officer has been left with no discretion to waive the same. The learned DR, thus, argued that passing a specific order for charging the interest was not necessary. The learned counsel contended that the interest is an additional liability, hence, separate order is required to charge the same. The Karnataka High Court in the case of Union Home Products Ltd. v. Union of India [l995] 215ITR 758 held that the previsions pertaining to the levy of interest cannot be considered penal in nature. Rather, they are compensatory in the sense that Revenue, like any other creditor should be compensated for the delay in obtaining its dues. The Hon'ble High Court held that "It is fairly manifest that the amount on which the interest is levied under Section 234A is the amount, which can legitimately be said to be public revenue though payable by the assessee, but not paid by him. Levy of interest on such amount which the assessee withholds and makes use of cannot be said to be anything but a compensatory measure, meant to offset the loss or prejudice which the revenue suffers on account of the non-payment of the said amount. This is so particularly, when one finds that the period for which the levy is made does not have an element of penalty in the same. The period for which additional liability is imposed is an important feature which very clearly gives the true legislative intent behind the levy. " The High Court also held that up to assessment year 1988-89, the law provided levy of interest under Section 139(8) and also for imposition of penalty under Section 271(1)(a) for delay or default in furnishing return. While Section 139(8) is reintroduced in a rigid form in Section 23 4A allowing no discretion to the Assessing Officer waive or reduce interest, Section 271(1)(a) authorizing the imposition of penalty is deleted altogether. The provisions of Section 139(8) and Section 271(1)(a) allowed substantial discretion to the Assessing Officer leading to constant litigation. Moreover, since levy of interest is mandatory, "section 234A (and also Sections 234B & 234C) do not envisage the grant of any hearing for the grant of any relief to the assessee is so far as the levy of interest is concerned. The levy is automatic, the moment it is proved that the assessee has committed a default within the mischief of any of the provision in question''. In view of the decision of the Karnataka High Court, they levy of interest is mandatory and no discretion is left with the authorities to waive the interest. These sections also do not envisage the grant of any hearing before levying the interest. Once, the Legislature has taken away the discretion of the Assessing Officer to waive or reduce interest even in cases of extreme hardship, we do not find any necessity of passing a specific order for the charging of interest by the Assessing Officer. We also do not subscribe to the arguments of the learned counsel that the interest is an additional liability, hence, a separate order is required for charging such interest. As we have discussed above, interest is compensatory in nature and the question of any additional liability does not arise. Once the default has been committed, the assessee has to compensate the revenue by making the payment of interest. The amount on which the interest is levied is the amount which can legitimately be said to be public revenue though payable by the assessee but not paid by him. Levy of interest on such amount which the assessee withholds and makes use of cannot be said to be anything but a compensatory measure, meant to offset the loss or prejudice which the revenue suffered on account of non-payment of the said amount. Therefore, it is not an additional liability but compensation, paid by the assessee for using the funds of the revenue. Therefore, the contention of the learned counsel that the interest under Sections 234A,234B & 234C is an additional liability is without any substance. We are, therefore, of the view that a separate order for charging interest which is compensatory in nature is not necessary. The payment of interest is mandatory in nature and the assessee has to pay once the default is committed. The learned counsel placed his reliance on the decision of the Patna High Court in the case of Ranchi Club Ltd. (supra) which has also been confirmed by the Hon'ble Supreme Court Ranchi Club Ltd. 's case (supra). The Patna High Court in this case held that "From the bare reading of Section 156 of the Income-tax Act,1961 it is not clear that the notice of demand claiming interest can be issued only when there is a specific order, levying interest. To use the expression 'charge interest, if any' or 'charge interest as per the rules' cannot be read to mean that the Assessing Officer has passed orders to 'charge interest under all the aforesaid sections'. The order to charge interest has to be specific and clear, as far that matter, any order to charge any tax, penalty or fine. The assessee must be made to know that the Assessing Officer after applying his mind has ordered charging of interest and under which section of the Act. A notice of demand is somewhat like a decree in a civil court which must follow the order. When the judgment does not specify any amount to be charged under any particular section, the decree cannot contain any such amount. Similarly, when the assessment order is silent on whether any interest is livable, the notice of demand under Section 156 cannot go beyond the assessment order and the assessee cannot be served any such notice. " Thus, the Hon'ble Patna High Court has compared the demand notice with the decree in the court and has laid down that interest under Sections 234A,234B & 234C cannot be charged through notice of demand under Section 156 of the Act. For charging the interest, the Assessing Officer has to pass a specific order is the absence of which, no interest can be charged. The learned DR, however, invited our attention to the various High Court decisions (supra) referred to by the Patna High Court while deciding this issue. We agree with the learned DR that the cases referred by the Patna High Court were pertaining to the charging of interest under Sections 139(8),215,216&217 of the Act which were discretionary but the charging of interest under Sections 234B & 234C is compensatory and mandatory in nature. The provisions of Sections 234B & 234C have not been considered by the Patna High Court. We also fully support the views of the learned DR that charging of interest under Sections 139(8),215,216 & 217 was discretionary and therefore, passing an order by the Assessing Officer for charging such interest was absolutely necessary. But in the new sections, the Assessing Officer is not left with any discretion. Therefore, passing an order of charging such interest is an exercise in futility. The learned DR also brought to our notice, the Supreme Court decision in the case of Kalycm Kumar Roy (supra) which perhaps was not brought to the notice of the lordships of the Patna High Court in the case of Ranchi Club Ltd. (supra). In the above case of Kalyan Kumar Roy (supra), the Hon'ble Supreme Court held as follows:

'Assessment' is one integrated process involving nor only the assessment of the total income but also the determination of the tax. The latter is as crucial as the former. The Income-tax Officer has to determine, on any order in writing, not only the total income but also the net sum which will be payable by the assessee for the assessment year in question and the demand notice has to be issued under Section 156 of the Income-tax Act,1961, in consequence of such an order. The statute does not, however, require that both the computations (i. e., of the total income as well as of the sum payable) should be done on the same sheet of paper, the sheet that is super scribed 'assessment order'. It does not prescribe any form for the purpose. Once the assessment of the total income is complete with indications of the deductions, rebates, relief's and adjustments available to the assessee, the calculation of the net tax payable is a process which is mostly arithmetical but generally time consuming. If, therefore, the Income-tax Officer first draws up an order assessing the total income and, indicating the adjustments to be made, directs the office to compute the tax payable on that basis and then approves of it, either immediately or sometime later, no fault can be found with the process, though it is only when both the computation sheets are signed or initialed by the Income-tax Officer that the process described in Section 143(3) will be complete.

I.T.N.S. 150 is also a form for determination of tax payable and when it is signed or initialed by the Income-tax Officer, it is certainly an order in writing by the Income-tax Officer determining the tax payable within the meaning of Section 143(3). It may be only a tax calculation form for departmental purposes as it also contains columns and code numbers to facilitate computerization of the particulars contained therein for statistical purposes, but this does not detract from its being considered as an order in writing determining the tax payable by the assessee. There is no reason why this document, which is also in writing and which has received the imprimatur of the Income-tax Officer, should not be treated as part of the assessment order in the wider sense in which the expression has to be understood in the context of Section 143(3). All that is needed is that there must be some writing initialed or signed by the Income-tax Officer before the period of limitation prescribed for completion of the assessment has expired in which the tax payable is determined. The form usually styled as the 'assessment form' need not itself contain the computation of tax as well.

Thus, the Supreme Court has laid down that if the ITO first draw up an order assessing the total income and indicating the adjustments to be made, direct the office to compute the tax payable on that basis and then approves process it either immediately or sometime later, no fault can be found with the process though it is only when both the computation sheets are signed or initialed by the ITO that the process described in Section 143(3) will be completed. In the present case, the Assessing Officer has passed the order under Section 143(3) of the Act. He has also given direction to charge interest under Sections 234B & 234C as applicable as the interest chargeable under Sections 23 4B & 23 4C is mandatory. The Assessing Officer is not left with any discretion to waive the interest. Therefore, the interest was chargeable and it was only the matter of calculation for which he gave direction to his office to compute the mandatory interest. The computation sheet for determination of the tax including the interest payable forms part of the order when it is signed or initialed by the Assessing Officer. It is certainly an order in writing by the Assessing Officer determining the tax payable within the meaning of Section 143(3) of the Act. In general, the computation sheet and the assessment order are signed together to complete the order under Section 143(3) of the Act. Without the computation sheet, the order of the Assessing Officer is incomplete. As the computation sheet is signed by the Assessing Officer, therefore, the Assessing Officer has applied his mind before signing it. The sub-ordinate staff who is preparing the computation sheet has no power to charge any tax or interest. Only the Assessing Officer has been empowered to charge tax and interest thereon, if any. So the demand notice issued which also includes interest has been signed by the Assessing Officer and has been issued under his directions. Therefore, it cannot be said that the interest has been charged without any specific order of the Assessing Officer. Interest is mandatory in nature, therefore, sometimes the assesses themselves make such calculations and are making the payments accordingly before filing the returns. Writing in the order 'charge interest, if any, under Section 234A,234B or 234C' is only procedural and these are directions to the staff. These directions are given by the Assessing Officer to his staff to find out the exact quantum of interest chargeable. After the proper computation is done, the computation sheet is signed which is an order passed by the Assessing Officer because, in our opinion, no demand notice can be issued from the office of the Assessing Officer without his specific orders. Therefore, to say that the Assessing Officer has not passed any specific order for changing the interest is without any substance. In fact, the interest has been charged with specific order of the Assessing Officer accordingly, the demand notice has been issued. Therefore, we find full force in the arguments of the learned DR that the interest has been charged under specific orders of the Assessing Officer. The arguments advanced by the learned DR also get full support from the decision of the Supreme Court in the case of Kalyan Kumar Roy (supra). In the case of Smt. Tej Kumari (supra), the Hon'ble Court followed their earlier order in the case of Ranchi Club Ltd. (supra), and held that interest under Sections 234A and 234B of the Income-tax Act,1961 is livable on the tax on the total income as declared in the return and not on the income as assessed and determined by the assessing authority. In the absence of any specific order of the Assessing Officer, interest could not be charged and recovered from the assessee. In the present case, interest has been charged by the assessing authority under a specific order. Only the Assessing Officer is having the authority to charge the interest and unless the Assessing Officer passes an order, the charging and recovery of the interest is not possible. The staff of the Assessing Officer is only helping him to find out the total quantum of the interest chargeable but they do not have any authority to charge the interest or recover it. Therefore, the interest has been charged under a specific order of the Assessing Officer. All the orders issued from the office of the Assessing Officer are under his authority and nobody else in the office is having any authority to issue any order for levying the tax or interest. Therefore, we do not find any force in the arguments of the learned counsel that the interest has been charged without any specific order from the Assessing Officer. Whatever demand notice is issued from the office of the Assessing Officer, the same is always issued under the specific order of the Assessing Officer and only he is empowered to issue such orders.

33. The learned DR brought to our notice the Supreme Court decision in the case of Anjum M.H. Ghaswala (supra) wherein the Hon'ble "Supreme Court has laid down that Expression 'shall' used in Sections 234A,234B and 234C cannot be construed as 'may'. Prior to the Finance Act,1987 the corresponding section pertaining to imposition of interest used the expression 'may', but the change brought out by the Finance Act,1987, is a clear indication that the intention of the Legislature was to make the collection of statutory interest mandatory. That expression is used deliberately. " This decision of the Apex Court has made it abundantly clear that interest under Sections 234A,234B & 234C is of mandatory nature and the expression 'shall' has been deliberately used to make the collection of statutory interest mandatory. The Assessing Officer has not been left with any discretion, therefore, if the interest is chargeable, that has to be charged. Accordingly, the Assessing Officer is giving directions to his staff to charge the interest, if any, under the said sections. Moreover, as we have discussed above, the interest is being charged under his authority and specific orders passed by him. His staff is only helping him to make the computation and ultimately, the orders are issued under the signature of the Assessing Officer. Therefore, the demand notice is issued under his signature which fully supports the view that he applied his mind before issuing the demand notice. This issue is, therefore, squarely covered with 1 the latest decision of the Supreme Court in the case of Anjum M.H. Ghaswala (supra).

34. In the case of Vinod Khurana (supra), the assessee filed his return of income for the assessment year declaring Rs. 98,515 as his income. In the course of investigation, the Assessing Officer detected an amount of Rs. 5 lakes credited in the assessee's bank account pass book. Thereupon, the assessee surrendered the amount credited to his bank account as his income subject to the condition that no penal action or prosecution was initiated against him. He filed a belated return on April 20,1998, admitting that amount as his income. In response to the notice issued under Section 148 of the Income-tax Act,1961, he relied on the second return. In the assessment order, the Assessing Officer ordered "charge interest as per law. Issue demand notice and challan", without mentioning the section under which it was to be charged. But the demand notice was issued by the Assessing Officer on the same date simultaneously, the quantum of interest and the section under it was charged, namely, Section 234B of the Act, was mentioned. The assessee challenged the charging of interest on the ground that no definite order for payment of interest under Section 234B of the Act had been passed in the assessment order and that the direction given in the assessment order for charging interest was vague and not specific. The Hon'ble High Court, thus, while dismissing the writ petition held that since the same officer has passed on the same date, the assessment order and the demand notice, specifying the quantum of interest charged under Section 234B of the Act, the charging of interest was valid. The Hon'ble High Court has made reference to the Supreme Court decisions in the cases of Kalyan 'Kumar Roy and Ranchi Club Ltd. (supra). In view of the aforesaid discussion, we find sufficient force in the arguments of the learned DR that the interest has been charged under the said sections as per the provisions of law. As the interest charged was of compensatory nature and mandatory, the Assessing Officer has correctly given direction in his order to charge interest as applicable. We do not find any force in the arguments of the learned counsel that even if the interest is mandatory, the Assessing Officer has to pass a specific order to charge the same. In fact, the interest has been charged as per the specific direction of the Assessing Officer as we have mentioned in the earlier paragraphs. The learned counsel also referred to some of the Tribunal orders where this issue has been decided in favour of the assessee by following the Supreme Court decision in the case of Ranchi Club Ltd. (supra). The orders of the Tribunal were passed when the decision of the Hon'ble Supreme Court in the case of Anjum M.H. Ghaswala (supra) was not available. Even the decision of the Punjab & Haryana High Court in the case of Vinod Khumna (supra) has made it very clear that the demand notice specifying the quantum of interest charged under Section 234B of the Act was valid. Keeping in view, the latest decision of the Apex Court and our findings in the foregoing paragraphs, we decide this issue in favour of the Department.

35. In the result, the appeal is dismissed.