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Income Tax Appellate Tribunal, DELHI BENCH ‘C’ NEW DLEHI
Before: SHRI N.K. CHOUDHRY & DR. B.R.R. KUMAR,
This appeal has been preferred by the Assessee against the order dated 31.08.2016, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-10, New Delhi (in short “Ld. Commissioner”), u/s. 250 of the Income-tax Act, 1961 (in short ‘the Act’) for the assessment year 2012-13.
In the instant case, the Assessee by filing declaration u/s. 158A(1) of the Act in Form No. 8 dated 26.08.2021, claimed that the Hon’ble Delhi High Court vide order dated 27.07.2011 in the case of CIT vs. Gautam R. Chadha decided the following issues :
(a). Whether ITAT was correct in law in deleting the addition made by the Assessing Officer, which had been restricted by the CIT(A) to the extent of 15% of the advances treating the same as income of the Assessee ?
(b). Whether the receipts on account of booking of cruise tickets assumed the character of income in the hands of the Assessee when the amount was received from the customers or when the cruise departed ?
(c). Whether the ITAT was correct in law in allowing the Assessee to adjust the losses incurred on share transactions against the profit of commission agency business under the name and style of M/s. Tirun Travel Marketing ?”
2.1 Ultimately, the Hon’ble High court in the aforesaid case has upheld the order passed by the ld. CIT(Appeals) in the said case by observing as under :
“We, therefore, hold that the stand taken by the CIT(A) in this regard was correct and 25% of the booking advance received should be treated as the income of the Assessee assuming that there are no cancellations. However, the Assessee shall be entitled to 10% of the travel agents commission after ascertaining the actual outgoings in this regard.”
The aforesaid order passed by the Hon’ble Delhi High court was challenged by the legal heirs of Mr. Gautam R. Chadha by filing Civil Appeal No. 004097, 4098, 4099 of 2012 and SLP No. 11984 of 2019 before the Hon’ble Apex Court, which are pending for adjudication and having involved the following questions of law.
“A. Whether the mandate of the revenue under the Income Tax Act is to tax the ‘income of the assessee’* or to tax every entry in the book of accounts including those entries which may be only an advance for an event to occur in future? B. Whether the receipts on account of .future bookings of cruise tickets assume character of income in hands of assessee at the stage when the amount was received from the customer or when the cruise departs? C. Whether the right to receive for an agent accrues at a mere receipt of advance money towards a booking or at the stage of delivery or service provided by its principal? D. Whether the High Court is correct in holding that since service is the duty of service provider the agent is not concerned whether ultimately service is availed by the customer or not irrespective of the fact that the income of the agent is dependent on the services provided by the Principal. E. Whether agents become entitled to their commission at the booking stage irrespective of whether the event occurs or not even when the agreement for ‘Total Commissionable Revenue’ is only for ‘Qualified Bookings’ which are completed only where cruise sails and for which full payment is received by the principal ?”
The Assessee, therefore, claimed that the result of the questions involved before the Hon’ble Supreme Court having direct relation with the issues involved in the instant appeal under consideration and therefore, in view of the provisions of section 158A(1) of the Act, the Assessee prayed that in case the Hon’ble Tribunal agrees to apply the decision on the question of law as involved before the Hon’ble Supreme Court in the aforesaid case, then the Assessee shall not raise any question(s) of law in appeal before any appellate authority or for a reference before the Hon’ble High Court u/s. 256 or Hon’ble Supreme Court u/s. 257 or in appeal before the Hon’ble Supreme Court u/s. 261 of the Act.
The Assessing Officer by exercising the powers u/s. 158A(3) of the Act, vide certificate dated 21.02.2023 certified the above facts qua passing of the order by the Hon’ble Delhi High court and pendency of the Civil Appeal and SLP (supra) before the Hon’ble Apex Court and declaration made in form No. 8 as true and therefore, prayed that the Hon’ble Tribunal may kindly be requested to admit form-8 along with its subsequent implications in the light of observations and other facts and circumstances of the case.
We have considered the peculiar facts and circumstances and the claim of the Assessee, which is not refuted by the Revenue Department that the issues involved in the instant appeal are similar to the issues involved pending for adjudication before the Hon’ble Apex Court and decision of the Supreme Court would be binding on the parties and the Assessee shall not file any reference and/or any statutory appeal either before the Hon’ble High Court or before the Hon’ble Apex Court qua the issues involved in the instant appeal.
Hence, considering the fact that as on today decision on the issues under consideration raised by the Assessee is against the Assessee and therefore in view of the provisions of section 158A(1) of the Act, declaration dated 26.08.2021 in Form No. 8 filed by the Assessee u/s. 158A(1) of the Act and certificate dated 21.02.2023 issued by the AO u/s 158A(3) of the Act, the instant appeal is liable to be dismissed, with liberty to the Assessee to seek modification of this order, as per outcome of the decision by the Hon’ble Apex Court on the identical issues as involved in this case.
In the result the Assessee’s Appeal stands dismissed in the aforesaid terms.
Order pronounced in the open court on 03.04.2023.