Tax Case Appeal v. The Joint Commissioner Of Income Tax,Special Range – Viii,Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal No.1919 of 2008M/s.Oriental Hotels Ltd.,17, M.G. Road, Chennai – 600 034. ...Appellant Vs. The Joint Commissioner of Income Tax,Special Range – VIII,Chennai. ... Respondent Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Madras “B” Bench, dated 30.06.2005 passed in I.T.A.No.1962/Mds/2002. For Appellant : Mr.Venkata Narayanan for M/s.Subbaraya Aiyar For Respondent : Mr.T.Ravikumar Senior Standing Counsel J U D G M E N T (Delivered by M. DURAISWAMY, J) This appeal filed by the assessee under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 30.06.2005 passed by the Income Tax Appellate Tribunal, Madras "B" Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.1962/Mds/2002 for the Assessment Year 1997-1998. The above appeal has been admitted on 27.01.2009 on the following Substantial Questions of Law: "1.Whether on the facts and in the circumstances of the case the Tribunal was right in confirming the reopening of the assessment made on the basis of mere change of opinion? 2.Whether on the facts and in the circumstances of the case, the tribunal was right in not appreciating that the appellant has fully and truly disclosed all particulars and materials and as such the reopening of the assessment could not be made beyond the period of four years as per proviso to Section 147? 3.Whether on the facts and circumstances of the case, the Tribunal was right in holding that the receipts in respect of export of construction material made to Maldives and Colombo should not form part of profits of business but should form part of the total turnover for computing relief under Section 80 HHD? 4.Whether on the facts and in the circumstances of the case, the tribunal was right in law in holding that the construction work carried out by the appellant overseas will not attract the provisions of Sec. 80HHD of the Act since the receipts are not on account of services provided to foreign tourists? 5.Whether on the facts and in the circumstances of the case, the tribunal was right in holding that the appellant is not entitled to deduction u/s 80 O as the service rendered by it to a foreign hotel cannot be construed as "professional services" or "technical services” ? 6.Whether on the facts and in the circumstances of the case, the Tribunal having held that the appellant is not entitled to deduction under Section 80 O, it ought to have directed appropriate deduction under Section 80 HHD on the income earned from abroad in foreign exchange? 7.Whether on the facts and in the circumstances of case, the tribunal was right confirming the restriction of deduction under Section 80 HHD by excluding interest income and amount received from British Airways for the stay of their crew members and profit generated from export of goods?' Tax Case Appeal No.1919 of 2008 2. We have heard Mr.Venkata Narayanan for M/s.Subbaraya Aiyar, learned counsel for the appellant/ assessee and Mr.T.Ravikumar, learned Senior Standing Counsel for the respondent/Revenue. 3. It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17[th]March 2020 and published in the Gazette of India on 17[th]March 2020. 4. We are informed by the learned counsel for the appellant/assessee that the assessee has already filed the requisite Forms 1 & 2 on 28.12.2020 under Section 4 of the Act. 3. It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17[th]March 2020 and published in the Gazette of India on 17[th]March 2020. 4. We are informed by the learned counsel for the appellant/assessee that the assessee has already filed the requisite Forms 1 & 2 on 28.12.2020 under Section 4 of the Act. 5. In the light of the fact that the assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the assessee in the event the order to be passed by the Department under the Act is not in favour of the https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.1919 of 2008 assessee. Accordingly, the Tax Case Appeal stands disposed of on the ground that the assessee has already filed the requisite Forms 1 & 2 and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at the earliest. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders. 6. With this observation, the Tax Case Appeal stands disposed of with the aforementioned liberty and consequently, the Substantial Questions of Law are left open. No costs. [M.D., J.] [T.V.T.S., J.]17.02.2021 (5/7) Tax Case Appeal No.1919 of 2008 Index: Yes/NoInternet: Yes mkn To 1.The Income Tax Appellate Tribunal, Madras “B” Bench 2.The Joint Commissioner of Income Tax, Special Range – VIII, Chennai. Tax Case Appeal No.1919 of 2008 M. DURAISWAMY, J. andT.V. THAMILSELVI, J. mkn Tax Case Appeal No.1919 of 2008 17.02.2021 (5/7)