M/S.oriental Hotels Limited v. The Assistant Commissioner Of Income Tax, Company Circle-V, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal No.79 of 2010 M/s.Oriental Hotels Limited,37, M.G. Road, Nungambakkam,Chennai – 600 034. ... AppellantVs. The Assistant Commissioner of Income Tax,Company Circle-V,Chennai.... Respondent Tax Case Appeal filed under Section 260A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunal, Madras “B” Bench, dated 09.04.2009 passed inI.T.A.No.980/Mds/2006, against the order of the Commissionerof Income Tax(Appeals)-VI, 121, Mahathma Gandhi Road, Chennai-600 034, dated 10/03/2006, ITA.No.232/04-05, for theAssessment year 2001-02 and against the AdditionalCommissioner of Income Tax Company Range-V, Chennai-34 dated30/03/2004 PAN/GIR No. for the Assessment year 2001-02. For Appellant : Mr.R.Venkata Narayanan for M/s.Subbaraya Aiyar For Respondent : Mr.T.Ravikumar Senior Standing Counsel The appeal filed by the assessee under Section 260A ofthe Income Tax Act, 1961 ('the Act' for brevity), is directedagainst the order, dated 09.04.2009, passed by the Income TaxAppellate Tribunal, Madras "B" Bench, Chennai ('the Tribunal'for brevity) in I.T.A.No.980/Mds/2006 for the Assessment Year2001-02. The above appeal was admitted on 09.02.2010 on thefollowing reframed Substantial Questions of Law: “1.Whether the Appellate Tribunal was right inholding that the appellant is not entitled to https://hcservices.ecourts.gov.in/hcservices/ deduction under Section 35-D as hotel industrycannot be regarded as an industrial undertaking?2.Whether the Appellate Tribunal was right inlaw in denying deduction under Section 35-D when thesame has been allowed in the initial assessment year1995-96? 3.Whether on the facts and in the circumstancesof the case the Tribunal was right in holding thatinterest income earned on deposits/loans advanced tosubsidiary companies and inter corporate dividendswhich were in the course of and for the purpose ofbusiness should be assessed as income from othersources and not under the head profits and gains ofthe business? 4. Whether on the facts and in thecircumstances of the case the Tribunal was right inholding that he amount received from BritishAirlines towards settlement of the bills of stay oftheir crew should not be included in the foreignexchange receipts of the appellant for the purposeof computation of deduction u/s.80HHD?” 2. We have heard Mr.R.Venkata Narayanan for M/s.SubbarayaAiyar, learned counsel for the appellant/ assessee andMr.T.Ravikumar, learned Senior Standing Counsel for therespondent/Revenue. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration onaccount of certain subsequent developments. The Government ofIndia enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3of 2020) to provide for resolution of disputed tax and formatters connected therewith or incidental thereto. The Act ofthe Parliament received the assent of the President on 17[th]March 2020 and published in the Gazette of India on 17[th]March2020. 4. We are informed by the learned counsel for theappellant/assessee that the assessee has already filed therequisite Forms 1 & 2 on 28.12.2020 under Section 4 of theAct. 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping the appeal pending. At the same time,safeguarding the interest of the assessee in the event theorder to be passed by the Department under the Act is not infavour of the assessee. Accordingly, the Tax Case Appealstands disposed of on the ground that the assessee has alreadyfiled the requisite Forms 1 & 2 and the Department shallhttps://hcservices.ecourts.gov.in/hcservices/process the application at the earliest in accordance with the 4. We are informed by the learned counsel for theappellant/assessee that the assessee has already filed therequisite Forms 1 & 2 on 28.12.2020 under Section 4 of theAct. 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping the appeal pending. At the same time,safeguarding the interest of the assessee in the event theorder to be passed by the Department under the Act is not infavour of the assessee. Accordingly, the Tax Case Appealstands disposed of on the ground that the assessee has alreadyfiled the requisite Forms 1 & 2 and the Department shallhttps://hcservices.ecourts.gov.in/hcservices/process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at theearliest. As observed, the assessee is given liberty torestore the appeal in the event the ultimate decision to betaken on the declaration filed by the assessee under Section 4of the said Act is not in favour of the assessee. If such aprayer is made, the Registry shall entertain the prayerwithout insisting upon any application to be filed forcondonation of delay in restoration of the appeal and on suchrequest made by the assessee by filing a MiscellaneousPetition for Restoration, the Registry shall place suchpetition before the Division Bench for orders. 6. With this observation, the Tax Case Appeal standsdisposed of with the aforementioned liberty and consequently,the Substantial Questions of Law are left open. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mkn To 1.The Income Tax Appellate Tribunal, Madras “B” Bench 2.The Assistant Commissioner of Income Tax, Company Circle-V, Chennai.3.The Commissioner of Income Tax(Appeals)-VI, 121, Mahatma Gandhi Road, Chennai-600 034. 4.The Additional Commissioner of Income Tax, Company Range-V, Chennai-34. +1cc to M/s.Subbaraya Aiyar, Advocate SR.1267+1cc to Mr.T.Ravi Kumar, Advocate SR.1260