The Commissioner Of Income Tax - Internationaltaxation -3 v. Westin Hotel Management Lp

Signature Not Verified $~49 & 50 IN THE HIGH COURT OF DELHI AT NEW DELHI +ITA 434/2022 THE COMMISSIONER OF INCOME TAX - INTERNATIONALTAXATION -3..... AppellantThrough:Mr. Ruchir Bhatia, Senior StandingCounsel for Revenue. versus WESTIN HOTEL MANAGEMENT LP ..... Respondent Through:Mr. Divyanshu Agrawal, Ms. RitikaChawla&Mr.VaibhavNiti,Advocates. +ITA 435/2022 & CM APPL. 47203/2022 (for exemption) THE COMMISSIONER OF INCOME TAX - INTERNATIONALTAXATION -3..... AppellantThrough:Mr. Ruchir Bhatia, Senior StandingCounsel for Revenue. versus SHERATON OVERSEAS MANAGEMENTCORPORATION ..... Respondent Through:Mr. Divyanshu Agrawal, Ms. RitikaChawla&Mr.VaibhavNiti,Advocates. %Date of Decision: 04[th]November, 2022 CORAM: HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA ITA 434/2022 & ITA 435/2022 Page 1 of 3 Signature Not Verified J U D G M E N T MANMOHAN, J (Oral): CM APPL. 47203/2022 (for exemption) in ITA 435/2022 Exemption allowed, subject to all just exceptions. Accordingly, the present application is disposed of. ITA 434/2022ITA 435/2022 1.Present Income Tax Appeals have been filed challenging the commonorder dated 29[th]April, 2022 passed by the Income Tax Appellate Tribunal(‘ITAT’) in ITA No. 2013/Del./2019 for Assessment Year (‘AY’) 2015-16and ITA No. 2012/Del./2019 for AY 2015-16. 2.Learned Counsel for the Appellant states that the ITAT has erred inholding that the entire payments received by the Assessee from its IndianCustomers on account of Centralized Services viz. sales and marketing,loyalty programs, reservation service, technological service, operationalservices and training programs/human resources do not constitute ‘Fee forTechnical Services’ as defined under Section 9(l)(vii) of the Income TaxAct, 1961 or 'Fee for included services’ as defined under Articles 12(4) (a)of the Indo- US DTAA. 3.He states that the ITAT has allowed the appeals of the Assesseesfollowing the judgement of this Court in Director of Income Tax v.Sheraton International Inc (2009) 178 taxman 84 (Del). He, however,states that the said decision of this Court has not been accepted by theRevenue and an appeal has been preferred against the same, which ispending adjudication before the Supreme Court. ITA 434/2022 & ITA 435/2022 Signature Not Verified 4.The counsel for the Revenue has not brought anything on record todistinguish the facts of present case with the facts involved in SheratonInternational Inc. (supra). 5.Admittedly,thisCourtin SheratonInternationalInc.(supra)has decided the issue involved in the present appeals in favour of theAssessee. 6.Though the judgment of this Court has been challenged and ispending adjudication before the Supreme Court, yet there is no stay of thesaid judgment till date. Consequently, in view of the judgments passed bythe Supreme Court in Kunhayammed and Others vs. State of Kerala andAnother, (2000) 6 SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Churchof South India Trust Association CSI Cinod Secretariat, Madras (1992) 3SCC 1, the present appeals are dismissed being covered by the judgmentpassedbythelearnedpredecessorDivisionBenchin SheratonInternational Inc. (supra). 7.However, it is clarified that the order passed in the present appealsshall abide by the final decision of the Supreme Court in the Civil AppealNo.3094/2010. MANMOHAN, J MANMEET PRITAM SINGH ARORA, J NOVEMBER 04, 2022/msh ITA 434/2022 & ITA 435/2022