The Hindu Business Line : A bouncer for Bhogle

THE existence of concessions and deductions in the Income-tax Act, 1961, has always been a subject matter of debate in this country. Gradually, most of the exemptions and deductions are likely to be phased out as the rates of income-tax stabilise at moderate levels. But the key question is what sort of concessions should be retained and for what purpose?

One of the deductions in Chapter VIA of the Act is with regard to professional income from foreign sources subject to certain conditions. This is contained in Section 80RR of the Act, which grants a deduction — ranging from 60 per cent to 15 per cent — from total income from assessment years 2001-02 to 2004-05 respectively. This is applicable to an individual resident in India being an author or playwright, `artist', musician, `actor' or sportsman.

The main condition to be satisfied is that the individual should earn professional income from foreign sources in convertible foreign exchange and this has to be brought into India within six months from the end of the previous year. There are certain forms and declarations to be furnished to enjoy this deduction.

In the recent Harsha Bhogle (2003 86 ITD 714) case, which came up before the Mumbai Bench of the Tribunal, the issue for consideration was whether the TV cricket commentator was entitled to the deduction under Section 80RR in respect of earnings from foreign sources.

Facts, issues

For assessment year 1997-98, Mr Harsha Bhogle, one of the more popular TV commentators, , filed a return of income claiming deduction under Section 80RR in respect of fees received from foreign sources. To support his claim, he furnished Form No.10H along with other required evidences supporting the claim.

The assessing officer (AO) and the CIT (Appeals) took the stand that Mr Harsha Bhogle is not entitled to the deduction as he would not come under the category of `artist' or `actor' to be entitled to the deduction. The matter reached the Mumbai Bench of the Tribunal. The short question for consideration was whether the role performed by Mr Harsha Bhogle is that of an `artist' or `actor'?

Television commentary today commands high levels of professional skills. With technology getting into the act in a big way, the role of a TV commentator is multifaceted and ranges from providing information on the game to taking the viewers through some of the important landmarks in the places where the game is being played. In that context, the question that needs to be addressed is whether commentators are merely commentators or perform in someway the role of an `actor' or `artist'.

Tribunal decision

The Mumbai Tribunal held that Mr Harsha Bhogle was not entitled to Section 80RR deduction. In substance, the view of the Tribunal was that he is neither an `actor' nor an `artist'. The Bench held that "the assessee was not acting in any play. He was also not indulging in such profession. He was also not pretending something, which in fact he was not. He was a TV commentator of cricket matches. He was collecting the information regarding the performances of each player and passing on the same to the public. Collecting photographs from the various sights for public consumption, no doubt makes the commentary very interesting but while doing so, the assessee was not doing any acting.

"In fact, he was collecting information only for using the same during the course of cricket commentary. No doubt, he was an outstanding cricket commentator but while performing his duty, he was not doing any acting but he was passing on to the public something which was in fact actually happening during the course of the match. In addition to the cricket commentary, he also took the public to some interesting sites of the city in which the cricket match was being played. Therefore, the assessee could not be considered as an `actor' for the purpose of relief under Section 80RR. The assessee was not indulging in any of the activities which would contribute to the greater understanding of India and its culture abroad."

On the argument whether Mr Harsha Bhogle can be called an `artist' the Bench reasoned that "artist' in the real sense has to indulge in various branches of creative activity concerned with the production of imaginative designs, sounds or ideas. The assessee was not imagining anything in his mind before the same was put into practice. He moved around the city and collected some pictures which were already in existence and, thereafter, he displayed those pictures on the TV during the course of cricket match.

"For collecting such pictures, one does not require any creative skills. The work of the assessee was highly technical and required only vocational skills which were opposed to creative skill. The definition of `art' in various dictionaries made it abundantly clear that the assessee was not an `artist' but technically quite competent to make his vocation highly interesting for the public."

The Tribunal accordingly decided the issue against Mr Harsha Bhogle.

While a literal reading of the section indicates that cricket commentators are not entitled to deduction under Section 80RR, one cannot help but get the feeling that the categories of professionals listed in the section may not be exhaustive and needs to be expanded to suit modern times. The debate on the precise role of a TV cricket commentator can go on till cows come home.

World Cup 2003 and the attention that the television media provided to the mega event is a case in point that preview shows anchored by top commentators represented filmic or cinematic situations. A couple of commentators provided enough amusement to millions of viewers through their analysis of, and debates on, the game before the captains went to toss. Enough publicity was accorded to Mandira Bedi, an actress, who shared the spotlight with the cricket commentators. By conduct, modern TV commentators are effectively `actors' or for that matter even `artists'. It would be appropriate and justifiable to specifically amend Section 80RR and include in its scope commentator of any sport. After all, when sportsmen are eligible for the deduction, why not commentators who sits in judgment on the performance of sportsmen?

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