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Before: Shri H.S. Sidhu & Shri L.P. Sahu
ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the Assessee against the order of ld. CIT(A)- XXVI, New Delhi dated 23.05.2014 for the assessment year 2010-11 on the following grounds :
“1. That the Ld. CIT (Appeals) erred in facts and in law in confirming the addition Rs.77,42,726/- treating part of Rs.3,44,12,114/- as income of the appellant although the same being in the nature of advances and partial deposits received by the appellant for and on behalf of its Principal, for sailing to be undertaken in the subsequent Financial Year.
At any rate, the addition on this account is arbitrary in nature, factually incorrect, is also entirely illegal and against the facts on record in as much as the Appellant had already paid Income Tax on the income earned on this account in the subsequent year as was done by him (the Appellant) in ITA No. 4114/Del./2014 2 this very year on the amount collected in the preceding assessment year and the sailing took place in the year under consideration.
At any rate, without, prejudice to the above, alternatively the amount of income which belonged to the similar advances received in the preceding year may be allowed to be reduced out of the taxable income so assessed.
2. That the assessment of total income at Rs.7,27,24,290/- and the demand of income tax amounting to Rs.38,53,690/- including interest there on u/s 234A, 234B & 234D and the initiation of penalty proceedings u/s 271 (1) (c) is unjust, arbitrary and illegal.”
The brief facts of the case are that the assessee filed return declaring income of Rs. 6,34,25,560/- on 02.09.2010 . The case was selected for scrutiny and statutory notices were issued to the assessee. During the scrutiny proceedings it was informed that the assessee has passed away on 05.11.2012 and his wife Smt. of Machida has taken over the business in the capacity as a sole proprietor . Therefore, the assessment was completed in the name of Smt.
Ratna Chadda being legal heir of late Gautam R. Chadda. During the assessment year the assessee has also earned exempted income of Rs.1,66,20,076/-. The assessee was engaged in the business of booking of Cruises for USA based company now known as Royal Caribbean Cruises Inc. ( RCC) since 1991-92. The assessee was maintaining his books of accounts on mercantile basis. The assessee used to receive advances from its prospective travelers in the month of March whereas the actual travel against advances always happened in the subsequent financial year. The advances which could
ITA No. 4114/Del./2014 3 not be remitted to the principal of the assessee retained as outstanding advances on 31st March every year. The assessee used to book the income against the outstanding advances only after the travel having been undertaken by the passengers who paid the advances and booked the tickets.
2.1 As per agreement between RCCL, the assessee is entitled for commission when ticket is booked by the prospective travelers. During the year, the assessee had shown in the balance sheet following outstanding to be remitted to RCCL as under :
(a) Advance received as part payment 1,03,04,906.50 (b) Advance received in full 2,41,07,207.72 Total advance received from customers 3,44,12,114.22 The traveling was not undertaken by the prospective travelers upto 31.03.2010, who booked the tickets on advance. The AO considering the detailed submissions of the assessee, applied 25% commission on the above outstanding amounts and gave 10% benefit of expenses incurred towards commission to the sub-agent. The Practice of the assessee for maintaining of accounts is the same as was there in last many years and there is no change in the nature of assessee’s business. Only agreements between the assessee and RCCL have been changed time to time as per mutual consent. Aggrieved by the above addition of Rs.77,42,726/-, the assessee appealed before the ld. CIT(A),
ITA No. 4114/Del./2014 4 who after considering the order of the Assessing Officer and the decision of Jurisdictional High Court in assessee’s own cases for A.Yrs. 2003-04, 2005-06 and 2007-08, confirmed the order of the Assessing Officer. Aggrieved by the order of the ld. CIT(A), the assessee is in appeal before the Tribunal.
The ld. AR submitted that the ld. CIT(A) is not justified to confirm the order of the Assessing Officer. He reiterated the submissions made before the authorities below. He submitted that according to the mercantile law, the right to income accrues only after the delivery of goods & services. This principle has been amply upheld by AS-9 and by the Hon’ble Supreme Court as the advances received in the last fortnight of the F.Y. and where the cruise travel was booked for the next financial year (the services were to be delivered in the next financial year), the income accrues in the next financial year and has already been offered and in fact income tax there on has already been paid in succeeding accounting year. The assessee right from the inception is following this practice consistently and the department in most of the years except a few has always accepted the same.
On the other hand, the ld. DR submitted that the lower authorities have made reasoned order and the similar issue has been decided in favour of the Revenue by Hon’ble Delhi High Court in the cases of assessee itself for the ITA No. 4114/Del./2014 5 preceding assessment years in the same facts and circumstances of the case.
There is no change in the method of accounting and nature of business in the present year. Therefore, in view of the decision of Hon’ble Jurisdictional High Court, no relief can be given to the assessee.
After hearing the submissions of both the parties and going through the entire material available on record, we find that the issue under consideration is squarely covered in favour of the Revenue and against the assessee by the decision of Hon’ble Jurisdictional High court in assessee’s own cases (ITA Nos.
310/2009, 358/2011 and 115/2010 for A.Y. 2003-04, 2005-06 and 2007-08), wherein the Hon’ble Court held as under :
“10. Admittedly, the assessee is following mercantile system of accounting, where under, whenever the right to receive money in the course of a trading transaction accrues or arises, even though income is not realized, income embedded in the receipt is deemed to arise or accrue as held by the SC in Raja Mohan Raja Bahadur, (Supra). In State Bank of Travancore (Supra) also, the SC has held that it is the income which has really accrued or arisen which is taxable. Similar view has been expressed by this court in Devsons (Supra). It was observed as under:
"... Even in the mercantile system of accounting it is the resl income which has accrued in a practical sense that is to be brought to tax. In CIT v Shoorji Vallabhdas and Co. [1959] 36 ITR 25, the Bombay High Court held that the question whether the income accrued or not is not a mere matter of cogency of the entries made in the account books of the assessee, but is essentially one of substance and of the real nature of what happened. A mere book entry is not conclusive of the question whether the assessee had become entitled to the sums or not and whether the income is accessable"
In Amiantit International (Supra), it was observed as under:
"We shall now look to the meaning of the expression" accrue or arise". The dicta of Mukherji, in Rogers Pyatt SI llac and Co. v Secretary of Stats for India [1925] 1 ITR 363
ITA No. 4114/Del./2014 6 has been quoted with approval in a series of decisions of the Supreme Court (vide E.D. Sassoon and Co. Ltd. v CIT [1954] 26 ITR 27 (page 50):
"Now what is income? The term is nowhere defined in the Act,... In the absence of a statutory definition we must take its ordinary dictionary meaning.... The word clearly implies the idea of receipt, actual or constructive. The Policy of the Act is to make the amount taxable when it is paid or received either actually or constructively. 'Accrues', 'arises' and 'is received' are three distinct items. So far as receiving of income is concerned, there can be no difficulty; it conveys a clear and definite meaning, and I can think of no expression which makes its meaning planner than the word 'receiving' itself. The words 'accrue' and 'arise' also are not defined in the Act. The ordinary dictionary meanings of these words have got to be taken as the meanings attaching to them. 'Accruing' is synonymous with 'arising' in the sense springing as a natural growth or result. The three expressions 'accrues', 'arises' and 'is received' having been used in the section, strictly speaking, 'accrues' should not be taken as synonymous with 'arises' but in the distinct sense of growing up by way of addition or increase or as a accession or advantage, while the word 'arises' means comes into existence or notice or presents itself. The former connotes the idea of growth or accumulation and the latter of the growth or accumulation with a tangible shape so as to be receivable."
In Dinesh Kumar Goel (Supra), it was observed as under:
".,...It is important, therefore, that receipt of a particular amount in the relevant year should be an "income' under the aforesaid provision. What is the relevant yardstick is the time of accrual or arisal for the purpose of its taxation, viz, in order to be chargeable, the income should accrue or arise to the assessee during the previous year. If income has accrued or arisen, even if actual receipt of the amount is not there, it would be chargeable to tax in the said year. Though the amount may be received later in the succeeding year, the income would be said to accrue or arise if there is a debt owned to the assessee by somebody at that moment. From this, it follows that there must be the “right to receive the income on a particular date". The court further explained that a right to receive a particular sum under the agreement would not be sufficient unless the right accrued by rendering of services and not by promoting for services and where the right to receive is anterior to rendering of service, the income, therefore, would accrue on rendering of services.... (para 13) "
The question for our consideration is as to when the income can be said to be accrued to the assessee. It is when the ticket is booked by the assessee or when the customer boarded the cruise and it departed? We find force in the contention of the learned counsel for the revenue, that it was RCCL and not the assessee who was ITA No. 4114/Del./2014 7
responsible to render all post booking services to the customers. As per Section 5 of Article (2) of 2002 International Representation Agreement as executed between the Assessee and RCCL, all bookings which become sailed which wore made in accordance with RCCL's applicable policy and procedures and for which full payment is received by RCCL in accordance with this agreement are termed as qualified bookings. It also provides that bookings that are made by the customers on the Cruise Line's website shall not be considered qualified bookings. As per Section 16 thereof, the assessee was required to remit for each booking to RCCL (a) quoted price or (b) the quoted prices minus the commission payable to the assessee pursuant to Section 6. Section 6 prescribed base commission which is payable by RCCL to the assessee on the bookings. It prescribes 25% as applicable base commission on individual and group bookings. From all this, it is seen that where full payment is received, the latter is to remit to RCCL the quoted booking price minus 25% base commission. Section 12 provides the payment to the travel agents. It states that all commission and other payments due and owing the travel agent, shall be the sole responsibility of the assessee and not RCCL. It also provides that assessee shall deduct and pay any such commissions and payments from the commission. That being so, as per the scheme of agreement, 10% commission payable by the assessee to the travel agent from 25% commission to be charged from RCCL. was the sole responsibility of the 3ssessee, Thus, as and when the ticket is booked and full payment is received, the assessee becomes entitled to deduct the commission of 25% and remit the balance to RCCL. The commission accrues to the assessee with the booking of tickets and against full payment. This is notwithstanding that the customer may not board the cruise or cancel the trip.
There is a procedure prescribed for cancellation of bookings. Section 20 of the Agreement provides for cancellation charges. This section reads as under:
"Section 20. Cancellation Charges.
IR acknowledges that RCCL suffers injury when (i) bookings arc cancelled but RCCL does not receive proper notice, or (ii) are cancelled close to the schedule departure. IR shall be liable to RCCL for payment of cancellation charges in accordance with RCCL's applicable cancellation charge schedule as may be amended from time to time. The current cancellation charges for individual bookings are set forth in Exhibit B and for group bookings in Exhibit A. These cancellation charges are subject to the following rules:
(a) RCCL reserves the right to change cancellation charges and time frames upon written notice to IR.
ITA No. 4114/Del./2014 8
(b) RCCL does not take responsibility for cancellations due to visa denials, incorrect documents, incorrect immigration forms, or absence of insurance.
As per this section, the assessee shall be liable to RCCL for payment of cancellation charges in accordance with the applicable cancellation charges schedule as may be amended from time to time. Assuming that in some cases, the assessee, in case of cancellation of trip, is liable to return the commission earned, it would be open for the assessee to seek adjustment or claim a refund of tax from the Authorities. We therefore, hold that the stand taken by the CIT (A) in this regard was correct and 25% of the booking advances received should be treated as income of the assessee assuming that there are no cancellations. However, the assessee shall be entitled to 10% credit on account of travel agents commission after ascertaining actual outgoings in this regard.”
Respectfully following the decision of Hon’ble jurisdictional High Court, we are not inclined to disturb the decision reached by the ld. CIT(A) in the impugned order. Accordingly, the appeal of the assessee has no merits and is liable to be dismissed.
In the result, the appeal is dismissed.
Order pronounced in the open court on 23.11.2017.