M/s. CJ International Hotels Ltd., New Delhi V. ACIT, New Delhi

ITA 379/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5256 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI R.S. SYAL, HONBLE VICE PRESID ENT & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NOS.-379 & 380/DEL/2014 ( ASSESSMENT YEAR: 2010-11) C J INTERNATIONAL HOTELS LTD. HOTEL LE MERIDIAN, 8, WINDSOR PLACE, JAPATH, NEW DELHI. DELCO1385G VS ACIT CIRCLE 49(1) NEW DELHI. ASSESSEE BY SH. TARANDEEP SINGH, ADV. REVENUE BY SH. ANSHU PRAKASH, SR. DR ORDER PER SHRI K.N. CHARY, J.M. THESE TWO APPEALS ARE CHALLENGING THE ORDER DATED 19.12.2013 IN APPEAL NO. 899/2012-13, WHEREIN THE L D. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI (FOR SHORT HEREINAFTER CALLED LD. CIT(A)) SUSTAIN THE ADDITI ON U/S 201(1) AND 201(1A) OF THE ACT. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS DE RIVING THEIR INCOME FROM THE BUSINESS OF RUNNING A HOTEL UNDER T HE NAME AND DATE OF HEARING 08.08.2017 DATE OF PRONOUNCEMENT 11.08.2017 2 ITA NO. 379/DEL/2014 STYLE HOTEL LE MERIDIAN. THERE WAS SURVEY OPERATION U/S 133A OF THE ACT ON 29.09.2006 IN THEIR PREMISES. BY ORDER D ATED 28.03.2012 AO PROPOSED ADDITION OF RS. 66,69,442/-. IN THE APPEAL PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT (A), WHILE DELETING THE ALL OTHER ADDITIONS, LD. CIT(A) CONFIR MED THE ADDITION OF RS. 28,30,744/- U/S 201(1) OF THE INCOME TAX ACT , 1961 (FOR SHORT HEREINAFTER CALLED THE ACT) AND RS. 96,217/ - U/S 201(1A) OF THE ACT. CHALLENGING THESE TWO ADDITIONS THE ASSES SEE PREFERRED THESE TWO APPEALS. 3. IT IS THE ARGUMENT OF THE LD. AR THAT THE ONLY Q UESTION THAT ARISES FOR ADJUDICATION IN THIS MATTER IS WHETHER T HE TIPS FOR HOTEL EMPLOYEES INCLUDED AND PAID BY CREDIT CARD BY CUSTO MERS AND COLLECTED BY THE EMPLOYER AND DISBURSE TO THE EMPLO YEES, AMOUNT TO SALARY OR IN LIEU OF SALARY OR PAYMENT MADE BY OR ON BEHALF OF THE EMPLOYER. HE SUBMITTED THAT IN ASSESSEES OWN CASE RELATING TO THE AY 2005-06 THE HONBLE SUPREME COURT HELD TH AT THE TIPS FOR HOTEL EMPLOYEES INCLUDED AND PAID BY CREDIT CAR D BY CUSTOMERS AND COLLECTED BY THE EMPLOYER AND DISBURSE TO THE E MPLOYEES DO NOT AMOUNT TO SALARY OR PROFIT IN LIEU OF SALARY OR PAYMENT MADE BY 3 ITA NO. 379/DEL/2014 OR ON BEHALF OF THE EMPLOYER, AS SUCH PROVISIONS RE QUIRING DEDUCTION OF TAX AT SOURCE ARE NOT ATTRACTED. WE H AVE PERUSED THE RECORD AND THE ORDER OF A COORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE REPORTED IN 158 ITD 287, DECISI ON OF THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN ITA 445/2011 REPORTED IN [2011] 338 ITR 598 (DELHI) AND THE DECISION OF THE DECISION OF THE HONBLE APEX COURT IN ASSESSEES OWN CASE IN CIVIL APPEAL NO.4441 OF 2016 REPORTED I N [2016] 384 ITR 14 (SC). FACTS AND QUESTIONS INVOLVED FOR ADJU DICATION ARE IDENTICAL. QUESTION TO BE ANSWERED IN THIS MATTER I S NO LONGER RES INTEGRA AND COVERED BY THESE DECISIONS. HENCE, WHIL E RESPECTFULLY FOLLOWING THE DECISION REPORTED IN (2016) 384 ITR 1 4 (SC), WE HOLD THAT THE TAX U/S 201(1) AND 201(1A) CANNOT BE SUSTA INED. WE, ACCORDINGLY, DIRECT THE AO TO DELETE THE SAME. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.08.2017 SD/- SD/- (R.S. SYAL) (K. NARSIM HA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 11.08.2017 *KAVITA ARORA 4 ITA NO. 379/DEL/2014 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 08.08.2017 DRAFT PLACED BEFORE AUTHOR 10.08.2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 11.8.17 APPROVED DRAFT COMES TO THE SR.PS/PS 11.8.17 KEPT FOR PRONOUNCEMENT ON 11.8.17 FILE SENT TO THE BENCH CLERK 11.8.17 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. 5 ITA NO. 379/DEL/2014