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(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.

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.

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.

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.