COMMISSIONER OF INCOME TAX vs HOTEL SRILEKHA (P) LTD.

Mrs. A. Subbulakshmy, J.:

The assessee is a private limited company and is running a hotel in Mount Road, Madras. For the assessment year 1981-82, the assessee collected a sum of Rs. 45,884 as hotel receipts tax from various customers for the period from 6-3-1981, to 31-3-1981. This amount was not brought to tax. On appeal by the assessee, the Commissioner (Appeals) on a different issue, directed the Income Tax Officer to bring to tax the said sum of Rs. 45,884 by enhancing the assessment. On further appeal by the assessee, the Tribunal held that the sum of Rs. 45,884 cannot be taxed as trading receipts. On that, the reference has arisen and at the instance of the revenue the following question has been referred to this court for consideration :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the sum of Rs. 45,884 collected by the assessee-company towards hotel receipts tax cannot be taxed as trading receipts and setting aside the order of the Commissioner (Appeals) to that extent 7''

The assessee- company has collected a sum of Rs. 45,884 towards hotel receipts tax for the period from 6-3-1981, to 31-3-1981, but, has not made over this collection to the Government. So, the Commissioner (Appeals) ordered for inclusion of this amount as part of the assessee''s business receipts. The assessment year involved is 1981-82. The Hotel Receipts Tax Act came into force on 1st Feb., 1981. The Tribunal found that this Act was later on withdrawn and thus there is the liability on the assessee to refund the said amount to its customers from whom these amounts were collected and so, it cannot be stated that the collection of hotel receipts tax amount is a trading receipt and so, the amount of Rs. 45,884 cannot be taxed as assessee''s tax receipts.

Counsel for the revenue submitted that the assessee has collected this amount and as it has not paid it to the Government as tax, the collection of this amount amounts to trading receipt and this amount has accrued to the income of the assessee and so be included as part of the assessee''s business receipts and it must be brought to tax and as and when the assessee pays the amount to the Government, the assessee would be entitled to claim deduction of that amount. He relies upon the decisions of the Supreme Court :

(i) Chowringhee Sales Bureau (P) Ltd. Vs. Commissioner of Income Tax , West Bengal, .

(ii) Sinclaire Murray and Co. (P) Ltd. Vs. The Commissioner of Income Tax, Calcutta, - and

(iii) Commissioner of Income Tax, Madras Vs. Thirumalaiswamy Naidu and Sons, .

The principles laid down by the apex court in the decisions cited supra are that the revenue amount collected by the appellant as tax constitutes its trading receipts and it has to be included in its total income and if and when the appellant pays the amount collected, to the State Government or refunds any part thereof to the purchaser, the appellant would be entitled to claim deduction of the amount so paid or repaid.

In the instant case, the assessee has not made over this collection to the Government nor returned any amount to the customers from whom it was collected. Applying the ratio laid down by the apex court in the decisions cited supra, we hold that the hotel receipts tax amount is a trading receipt and is liable for assessment. But, of course, the assessee would be entitled to claim deduction of the amount as and when it pays it to the Government or refunds it to its customers. The Tribunal has committed error in passing the order that this amount cannot be taxed as assessee''s trading receipts.

We answer the question referred to us, in favour of the revenue and against the assessee. No costs.