TMI Blog2018 (5) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of assessee. - ITA No.4535/DEL/2015 And 4534/DEL/2015 - - - Dated:- 3-5-2018 - SH.R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER For The Appellant : Shri Tarandeep Singh, Advocate For The Respondent : Smt. Vijay Kumar Jiwani, Sr. DR ORDER PER R.K. PANDA, AM: The above two appeals filed by the assessee are directed against the order dated 30.04.2005 passed by CIT(A)-41, New Delhi confirming the order passed by the Assessing Officer u/s 201 (1) and 201 (1A) of the I. T. Act for the A.Y. 2011-12. 2. Facts of the case, in brief, are that the assessee is a company engaged in the business of running a hotel. During the course of assessment proceedings the Assessing Officer not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue the has been decided against the assessee by the decision of the Jurisdictional High Court in assessee s own case in the order dated 11.05.2011. 3. Aggrieved such order of the CIT (A), the assessee is in appeal before us by raising the following grounds. ITA No. 4534/Del /2015 :- 1. That on facts and in law, the CIT(A) erred in upholding the action of Assessing Officer in holding the appellant to be in default u/s 201(1) of the Act for non compliance u/s 192 of the Act. 2. That on facts and in law the CIT(A) erred in upholding that the appellant had a liability to deduct tax u/s 192 on the tips of ₹ 30,47,650/- disbursed by the assessee on behalf of its guests. 3. That on facts and in law the order u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the actual custody of the employer he would have no title to the money as he would hold such money in a fiduciary capacity for and on behalf of his employees. In the said circumstances, it is clear that such payments would be outside the purview of section 15(b) of the Act. 6. So far as levy of interest u/s 201 (1A) of the IT Act as concerned. The Ld. Counsel for the assessee drew the attention of the Bench to para 37 of the order which reads as under :- 37. A great deal of argument was made by both sides on the nature of interest contained in section 201(1A) of the Act. We find it unnecessary to go into this question for the simple reason that as held in CTT v. Eli Lilly and Co. (India) P. Ltd. [2009] 15 SCC l1 at paragraph 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board [2016] 76 taxmann.com 365 (Punjab Haryana)/[2017] 245 Taxman 183 (Punjab Haryana)/[2017] 394 ITR 195 (Punjab Haryana) 6. Nopany Marketing Co. (P.) Ltd. Vs. CIT [2015] 57 taxmann.com 186 (Calcutta)/[2015] 231 Taxman 802 (Calcu tta) 7. We have considered the rival arguments made by both the sides and pursued the material available on record. We find the Assessing Officer in the instant case has treated assessee as an assessee in default for non deduction of tax from payment of tips u/s 192 of the IT Act since according to the Assessing Officer such payment of tips amounts to part of the salary. We find the Ld. CIT (A) following the decisions of the Hon ble Jurisdictional High Court in assessee s own case upheld the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee s own case in ita 445/2011 REPORTED IN [2011] 338 itr 598 (Delhi) and the decision of the decision of the Hon ble Apex Court in assessee s own case in Civil Appeal No.4441 of 2016 reported in [2016] 384 ITR 14 (SC). Facts and questions involved for adjudication are identical. Question to be answered in this matter is no longer resintegra and covered by these decisions. Hence, while respectfully following the decision reported in (2016) 384 ITR 14 (SC), we hold that the tax u/s 201(1) and 201(1A) cannot be sustained. We, accordingly, direct the AO to delete the same. 8. Since the issue has now been decided in favour of the assessee by the Hon ble Apex Court as well as decision of the Tribunal for the immediately proceeding asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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