DCIT(TDS), Circle-1, Kolkata, Kolkata V. M/s Earnest Towers Pvt Ltd, Kolkata

ITA 1519/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1386 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 21-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: SANTOSH KUMAR BAJAJ
• Keywords: Maximum Marginal Rate; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, A CCOUNTANT M EMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER ] I.T.A. NO. 1 519 / KOL/201 6 ASSESSMENT YEAR: 20 1 3 - 14 DCIT(TDS), CIRCLE - 1, KOLKATA . . ... APPELLANT 10B, MIDDLETON ROAD KOLKATA 700 071 M/S. EARNEST TOWERS PVT. LTD. .. ... .. .. . RESPONDENT 9B WOOD STREET 4 TH FLOOR KOLKATA 700 016 [PAN : AABCE 8612 N ] APPEARANCES BY: SHRI SANTOSH KUMAR BAJAJ , FCA , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI S. DASGUPTA , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 04 TH , 201 8 DATE OF PRONOUNCING THE ORDER : MARCH 9 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 24 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 3 1 / 0 5 /201 6 . 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ONLY ISSUE FOR OUR CONSIDERATION IS AS TO WHETHER TAX NEED TO BE DEDUCTED AT SOURCE ON LEASE PREMIUM PAID BY THE ASSESSEE TO MMRDA AGAINST LEASE OF LAND. THE TRIBUNAL ON THE VERY SAME ISSUE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008 - 09, IN ITA NO. 265/KOL/2012, AT PAGE 16 PARA 5 HELD AS FOLLOWS: - 5. AS REGARDS GROUND NO. 2 OF THE REVENUE THE SAID ISSUE IS COVERED AGAINST THE REVENUE IN VARIOUS JUDICIAL PRONOUNCEMENTS AS MENTIONED HERIN ABOVE. IN THE CASE OF ITO VS INDIAN NEWSPAPER SOCIETY (SUPRA) ITAT DELHI BENCH HAS HELD THAT IN CASE THE LEASE PREMIUM PAID BY THE ASSESSEE IS HELD TO BE CAPITAL IN NATURE AND THE ASSESSEE IS NOT LIABLE OT DEDUCT TDS ON PAYMENT OF LEASE PREMIUM TO MMRDA. THE ISSUE IS THEREFORE DECIDED AGAINST THE REVENUE. THUS GROUND NO. 2 OF THE REVENUE IS DISMISSED. 3. THE HONBLE DELHI HIGH COURT IN THE CASE OF KRISHAK BHARATI COOPERATIVE LTD. VS DEPUTY C IT, ITA NO. 20 5/2010, JUDGEMENT DT. 12/07/2012, TOOK A VIEW THAT LEASE PREMIUM PAID WAS CAPITAL EXPENDITURE AND NOT ALLOWABLE AS 2 I.T.A. NO. 1519/KOL/2016 ASSESSMENT YEAR: 2013 - 14 M/S. EARNEST TOWERS PVT. LTD EXPENDITURE. HENCE T.D.S. PROVISIONS HAVE NO APPLICATION ON THE FACTS OF THIS CASE. 4. RESPECTFULLY FOLLOWING THE SAME, WE UP HOLD THE ORDER OF THE LD. CIT(A) THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S 201/201(1A) OF THE ACT, IS BAD IN LAW, AND DISMISS THIS APPEAL OF THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 9 TH DAY OF MARCH , 201 8 . SD/ - SD/ - [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09 . 0 3 .201 8 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. DCIT(TDS), CIRCLE - 1, KOLKATA 10B, MIDDLETON ROAD KOLKATA 700 071 2. M/S. EARNEST TOWERS PVT. LTD 9B WOOD STREET 4 TH FLOOR KOLKATA 700 016 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES