Commissioner Of Income Taxchennai v. M/S.oriental Hotels Ltd.paramount Plaza47, M.g.road, Chennai 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.08.2014CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKARANDTHE HONOURABLE MR. JUSTICE G.M.AKBAR ALI T.C.A. NO. 498 OF 2014 Commissioner of Income TaxChennai....Appellant/Appellant- Vs - M/s.Oriental Hotels Ltd.Paramount Plaza47, M.G.Road, Chennai 600 034....Respondent/Respondent Appeal u/s 260-A of the Income Tax Act filed against the orderof the Income Tax Appellate Tribunal, Madras 'B' Bench, dated26.11.13 in ITA No.1449/Mds/2011 as filed against the order of theCommissioner of Income Tax (Appeals)-VI, Chennai - 34, dated26.05.2011 made in ITA No. 349/10-11/VI filed against the order ofthe Deputy Commissioner of Income Tax Company Circle V(1) Chennai -34, dated 04.03.2010 in PAN No.AAA C007 28 N for the assessment year1999-2000. For Appellant: Mr. T.R.Senthilkumar JUDGMENT (DELIVERED BY R.SUDHAKAR, J.) This tax appeal is preferred against the order of the IncomeTax Appellate Tribunal, Madras 'B' Bench, dated 26.7.13 in ITANo.1449/Mds/2011. 2. The Revenue is aggrieved by the order passed by the Income TaxAppellate Tribunal on the following substantial question of law :-“Whether under the facts and circumstances of thecase, the Income Tax Appellate Tribunal was right inholding that the expenditure tax, luxury tax andsales tax should not be included in the totalbusiness receipts for the purpose of computing ofdeduction under Section 80 HHD of the Act”. https://hcservices.ecourts.gov.in/hcservices/ 3. The respondent assessee is running a hotel business. TheAssessing Officer passed an order under Section 154 of the Income TaxAct for the assessment year 1999-2000 to rectify the mistake apparentfrom the record and the Assessing Officer found a mistake, in thatwhile computing deduction under Section 80 HHD of the Act, in thedenominator (total receipts) the total taxes (expenditure tax, luxurytax and sales tax) should have been included and were not included inthe earlier order and after giving opportunity to the assessee, theAssessing Officer rectified the earlier order and recomputed thededuction under Section 80 HHD of the Act by including the totaltaxes, viz., expenditure tax, luxury tax and sales tax claimed inRupees and foreign exchange in the denominator (total receipts).Aggrieved by the order, the assessee preferred an appeal to theCommissioner of Income Tax (Appeals), who allowed the said appealrelying upon a judgment of this Court in CIT – Vs – Adyar Gate HotelsLtd. (293 ITR 86). 4. Against the above order of the Commissioner of Income Tax(Appeals), the Revenue preferred appeal to the Income Tax AppellateTribunal, which dismissed the appeal filed by the Revenue by relyingupon the order passed by this Court and held as under :-“9. We have heard both sides, perused the materialson record and gone through the orders of authoritiesbelow. The issue involved in this appeal is whetherthe expenditure tax, luxury tax and sales tax has tobe included in the total business receipts of theassessee or not. In this context, the Hon'bleJurisdictional High Court in the case of CIT – Vs –Adyar Gate Hotels Limited (supra) has held thatexpenditure tax, luxury tax and sales tax should notbe included in the total business receipts for thepurpose of computing of deduction under Section HHDof the Act. The ld. CIT (Appeals), by following thedecision of the Hon'ble Jurisdictional High Court,allowed the appeal of the assessee. The ld. DR couldnot controvert or filed any higher Court's decisionon this issue to take a different view. Therefore,we find no reason to interfere with the order passedby the ld. CIT (Appeals) and dismiss the groundsraised by the Revenue.” 5. Aggrieved against the said order passed by the AppellateTribunal, the present appeal has been filed by the Revenue raisingthe very same substantial question of law as has been raised beforethe Appellate Tribunal. 5. Aggrieved against the said order passed by the AppellateTribunal, the present appeal has been filed by the Revenue raisingthe very same substantial question of law as has been raised beforethe Appellate Tribunal. 6. Heard Mr.T.R.Senthil Kumar, learned standing counsel appearingfor the appellant. https://hcservices.ecourts.gov.in/hcservices/ 7. The only point raised is that the ratio laid down by theSupreme Court in Lakshmi Machine Works Ltd.'s case (290 ITR 667),which was passed in the context of considering Section 80 HHC of theAct was not considered by the Appellate Tribunal. The Department hasnot produced any material before this Court to show that such a pleawas raised before the Appellate Tribunal and the same has not beenconsidered by the Appellate Tribunal. Nevertheless, the case on handconcerns interpretation of Section 80 HHD of the Act and not Section80 HHC of the Act and, therefore, the judgment of the Apex Courtrelied on by the learned standing counsel for the Revenue is of nouse to the appellant as the decision of this Court in Adyar GateHotels's case (supra), which pertains to Section 80 HHC still holdsthe field. 8. In such view of the matter, we find no reason to interferewith the order passed by the Appellate Tribunal nor any error of lawis pointed out by the learned standing counsel for the appellant inthe order of the Appellate Tribunal warranting interference at thehands of this Court. The question of law that has been raised isidentical to the one raised before the Appellate Tribunal, whichhaving been answered in favour of the assessee, with which view thisCourt concurs, this Court has no other alternative except to dismissthis appeal. 9. There is no question of law, much less substantial questionof law that arises for consideration in this appeal. This appeal,being devoid of merits, the same is dismissed. Sd/- Asst. Registrar (CS-III) //True Copy// Sub Asst. Registrar. GLNTo 1.The Commissioner of Income Tax-IIIChennai. 2.The Deputy Commissioner of Income Tax,Company Circle V (1)Chennai - 34. 3.The Additional Commissioner of Income Tax,Company Range V,Chennai.Company Range V,Chennai. 4.The Commissioner of Income Tax (A)-VI,Chennai.Chennai. 5.The Income Tax Appellate Tribunal 'B' Bench,Chennai.Chennai. 1CC to Mr.T.R.Senthil Kumar, Advocate, SR 36664 T.C. (A) NO. 498 OF 2014 SJ PSI 28/08/2014