TMI Blog2002 (5) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescribed Form Nos. 3CC and 3CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 everyone 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing worked in media and sports related activities and projects......". The learned counsel invited our attention to Document- 7 (compilation page-II) 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 photog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 Websters 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 [1988] 170 ITR 137. He argued that circulars are binding on the departmental authorities. To support his view, he relied on the following court cases: (i) UCO Bankv. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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, the High Court held that unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art 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 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. Thus, the learned DR contended that levy of interest under sections 234B and 234C is mandatory and the same is not appealable. According to him, the levy of interest is automatic and the Assessing Officer is not empowered to waive it. Thus, charging of intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court decision in the cases of Joint Family of Udayan Chinubhaiv. CIT [1967] 63 ITR 416 and Dwarkadas Kesardeo Morarka v. 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 res judicata 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 10H 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory. 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 sub-section (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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself. Referring to the Supreme Court decision in the case of Petron Engg. Construction (P.) Ltd. 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 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, 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. He also referred to the Patna High Court decision in the case of Smt. Tei Kumari v. CIT [2001] 247 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled 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 practises 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 tacts 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 ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 TV. 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. 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 Academ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, the certificate was not filed along with the original return. In the case of Jaideep Industries 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 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 held that the report can be filed at any stage up to assessment. Bombay High Court in the case of Shivanand Electronics 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, me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, 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 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 compensator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various High Court decisions 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 Kalyan Kumar Roy which perhaps was not brought to the notice of the lordships of the Patna High Court in the case of Ranchi Club Ltd. In the above case of Kalyan Kumar Roy, the Hon'ble Supreme Court held as follows: "'Assessment' is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer 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 initialled 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 234B 234C 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 compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Ranchi Club Ltd., and held that interest under sections 234A and 234B of the Income-tax Act, 1961 is leviable 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 coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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