Star Cruises (India) Travel Services ... vs Assessee
- CitationITA No.1809-1811/Mum/2013
Ratio decidendi
The rule this decision rests on
The Tribunal dismissed the revenue's appeals and the assessee's cross objections on the following basis, which rests on the Tribunal's own prior decisions in the assessee's case: Where the same issue has been consistently decided by the Tribunal in the assessee's favour in its own earlier cases, and the revenue does not distinguish those decisions, the issue is concluded and the Tribunal will not interfere with an order of the first appellate authority that follows those decisions. On the substantive question, following the Tribunal's earlier orders in the assessee's own case, no income accrues or arises in India to a non-resident foreign company from the booking or sale of cruise tickets through an Indian agent, so that no business connection under section 9(1)(i) of the Income Tax Act is established on that basis and no tax is deductible at source on such sale proceeds. Cross objections supporting an order that is upheld become infructuous and fall with the revenue's appeal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
सर्वश्री आय.सी.शभमव, रेखम सदस्म एवुं श्री संजम गगव, न्ममयमक सदस्म BEFORE SHRI R.C.SHARMA, AM & SHRI SANJAY GARG, JM आमकय अऩीर सं./ITA No.1809-1811/Mum/2013 ( नििाारण वषा / Assessment Years :2009-10, 2012-13 & 2013-14) DDIT(IT)-2(1), Mumbai Vs. M/s Star Cruise Management Ltd., Sekhri Kanodia & Associates, Cal, G-15, Everest, Tardeo Road, Mumbai-400034 स्थममी रेखम सं ./ जीआइआय सं ./ PAN/GIR No. : AAHCS 0352 F (अऩीरमथी /Appellant) .. (प्रत्मथी / Respondent)
AND Cross Objection Nos.96, 108 & 109/Mum/2014 ( नििाारण वषा / Assessment Years :2009 -10, 2012-13 & 2013-14) M/s Star Cruise Vs. DDIT(IT)-2(1), Mumbai Management Ltd., Sekhri Kanodia & Associates, Cal, G-15, Everest, Tardeo Road, Mumbai-400034 स्थममी रेखम सं ./ जीआइआय सं ./ PAN/GIR No. : AAHCS 0352 F (अऩीरमथी /Appellant) .. (प्रत्मथी / Respondent)
यमजस्र् की ओर से /Revenue by : Shri Neil Philip यनधमवरयती की ओर से /Assessee by : Shri Vipul B. Joshi & Shri Satish Kanodia सुनर्मई की तमयीख / Date of Hearing : 16/06/2015 घोषणम की तमयीख/Date of Pronouncement 24/06/2015
आदे श / O R D E R
PER R.C.SHARMA (A.M):
These are the appeals filed by the revenue and cross objection by
the assessee against the order of CIT(A), for the assessment years 2009- 2 ITA Nos.1809-1811/13 &CO, 96,108-109/14
10, 2012-13 & 2013-2014, respectively in the matter order passed
u/s.143(3) of the IT Act.
2. Common grounds have been taken by the revenue for all the years
under consideration. Grounds taken for the assessment year 2009-2010
reads as under :-
"1) On the facts and circumstances of the case and in law, the ld.
CIT(A) erred in holding that there is no business connection between the Indian Company and the foreign Company as contemplated in Sec.9(1)(i) of the Act and no income accrues/arises or is deemed to accrues/arises in India out of sales proceeds of cruise tickets booked by its Indian AgentM/s Star Cruises (India) Travel Services Pvt. Ltd.
2. The appellant prays that the order of ld. CIT(A) on the above grounds be set aside and that of the Assessing officer restored."
3. Rival contentions have been heard and record perused. Facts in
brief are that M/s Star Cruises (India) Travel Services Pvt. Ltd. (Indian
Company) is engaged in the canvassing business of travel and tour
related services. It has entered into a Canvaser Agent Agreement dated
1st March 2005 with M/s Star Cruise Management Company. Isle of Man
(the assessee Foreign Company/SCML) for mainly canvassing their
cruise in India for an agreed remuneration. The assessee company
claimed that the sale proceeds of the cruise tickets being remitted to it by
its Indian Agent M/s SCITS is not liable to tax in India. However, the
Assessing officer has treated SCITS as the agent of SCML and estimated
the income accruing towards the operations carried out in India of SCML
@5% of the cruise collections remitted from India. The Assessing officer
accordingly, passed the order u/s.143(3) dated 7 December 2011 and
directed that SCML to be liable to tax.
3
ITA Nos.1809-1811/13 &CO, 96,108-109/14
4. By the impugned order, the CIT(A) by following the order of the
Tribunal in assessee's own case held that there is no business connection
between Indian company and foreign company as contemplated
u/s.9(1)(i) of the Act. The precise observation of the CIT(A) is as under :-
"4. I have considered the ARs argument and have also perused the records. The subject matter of the above appeal is arising out of Order u/s 195 for A Y 2009-10. The appeal against the Order V/s 195 for A Y 2009-10 has been decided by my predecessor in the consolidated order of appeal No CIT(A)-Il/lT-73/ Rg.2(1)/07-08/72- S., dated 24th February 2010 where all issues, and the GSA and Canvasser agreements are discussed in detail. No fresh facts have been brought on records and nor have any fresh arguments been raised by the Assessing Officer and further and the predecessor's order is upheld by the Hon'ble ITAT vide consolidated order dated 22 July 2011 in ITANo.~941/Mum/2010 for AY 2006-07,ITA No.3943/Mum/2010 for A.Y.2007-08, ITA No.3945/Mum/2010 for A.Y. 2008-09, ITA No.3942 /Mum/2010 for A.Y. 2009-10 and ITA No. 3802/Mum/2010 for A.Y.2010-11. Accordingly for the detail reasons mentioned in the consolidated order for AY 2006-07 to 2010-11 dated 24.2.2010 passed against orders u/s 195 in the case of (India) Travel Services Pvt. Ltd, hold that there is no business connection between Indian Company and Foreign Company as contemplated u/s.9(1)(i) of the Act.
4.1 In view of the foregoing the order of the Assessing Officer for TDS by appellant on sale proceeds of cruise tickets booked by the various travel agents is not justified. Grounds 1 to 7 of the appeal are allowed."
Against the above order of CIT(A), the revenue is in appeals before us.
5. We have considered rival contentions and found that the issue
under consideration has consistently been decided by the Tribunal in
assessee's own favour in assessee's own case and it was held that no
income accrues or arises to the assessee in India respect of booking or sale of
tickets for tour packages of the cruises in India. The order of the Tribunal for the
assessment year 2001-02 & 2002-03, passed in ITA Nos.4973/Mum/2005 & 4 ITA Nos.1809-1811/13 &CO, 96,108-109/14
6497/Mum/2006, dated 21-12-2009 and the order of Tribunal for A.Y.2005-06,
dated 23-12-2010 was also placed on record.
6. Ld. DR fairly conceded that the issue has been consistently decided by
the Tribunal in assessee's favour by dismissing the revenue's appeal.
7. In view of the above, we do not find any reason to interfere in the order of
CIT(A) for allowing the assessee's appeal by following the order of the Tribunal
in assessee's own case.
8. The cross objections filed by the assessee are just in support of the order
passed by the CIT(A). As we have already upheld the order of CIT(A), therefore,
the cross objections filed by the assessee have become infructuous.
9. In the result, appeals of the revenue as well as cross objections of
the assessee are dismissed.
Order pronounced in the open court on this 24/06/2015.
Sd/- Sd/- (संजम गगव) (आय.सी.शभमव) (SANJAY GARG) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भंफ ु ई Mumbai; ददनमंक Dated 24/06/2015 प्र.कु.मभ/pkm, यन.स/ PS
आदे श की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to :
1. अऩीरमथी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai.
4. आमकय आमक् ु त / CIT
5. वर्बमगीम प्रयतयनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai
6. गमर्व पमईर / Guard file.
सत्ममवऩत प्रयत //True Copy// आदे शािसार/ BY ORDER,
उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुंफई / ITAT, Mumbai
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