Income-tax Officer, V. M/s. Nirman Associates, Pune

ITA 2017/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2824 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 13-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Maximum Marginal Rate
• Section: 12A; 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2015/PN/2014 #& & / ASSESSMENT YEAR : 2011-12 ITO, TDS-2, PUNE . / APPELLANT V/S M/S. PATIL HOSPITAL, GANESH COLONY, RUPEE NAGAR, TALAWADE, TAL HAVELI, PUNE PAN NO.AAMFP0197M . / RESPONDENT . / ITA NO.2017/PN/2014 #& & / ASSESSMENT YEAR : 2011-12 ITO, TDS-2, PUNE . / APPELLANT V/S M/S. NIRMAN ASSOCIATES, SECTOR 29, BULK LAND NO.13/3, NEAR D.Y. PATIL COLLEGE, PCNTDA, RAVET, PUNE - 411044 PAN NO.AAHFN7864L . / RESPONDENT / ASSESSEES BY : NONE / REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K. PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 25-08-2014 AND 06 -08-2014 / DATE OF HEARING :03.02.2016 / DATE OF PRONOUNCEMENT:10.02.2016 2 ITA NOS.2015 & 2017/PN/2014 RESPECTIVELY OF THE CIT(A)-V, PUNE RELATING TO ASSESSMENT YEAR 2011-12. SINCE IDENTICAL ISSUES ARE INVOLVED IN BOTH THE APPEALS, THEREFORE, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. DESPITE SERVICE OF NOTICE ON THE ABOVE ASSESSEES NON E APPEARED ON THEIR BEHALF NOR ANY PETITION WAS FILED SEEKIN G ADJOURNMENT OF THE CASES. HENCE, WE PROCEED TO DECIDE THE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFT ER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. ITA NO.2015/PN/2014 (M/S. PATIL HOSPITAL) : 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM. IT HAD ENTERED INTO A 99 YEAR LEASE AG REEMENT WITH PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY (PCNTDA IN SHORT) WITHIN VILLAGE LIMITS OF CHIKHALI, TALUKA HAVELI, PUNE. THE ASSESSEE HAS PAID LAND LEASE PREMIUM OF RS.73,77,700/- AND AGREED TO PAY A SUM OF RS.100/- PER ANNUM FOR THE ENTIRE PERIOD OF LEASE. THE AO AFTER EXAMINI NG THE PROVISIONS OF SECTION 194I OF THE I.T. ACT AS WELL AS T ERMS OF LEASE DEED ENTERED INTO BETWEEN THE ASSESSEE AND PCNT DA WAS OF THE VIEW THAT THE PAYMENT IN QUESTION WAS COVERED B Y THE DEFINITION OF RENT AS PER PROVISO TO SECTION 194I OF THE I.T. ACT. ACCORDINGLY, THE AO WAS OF THE VIEW THAT TDS U/S.194I WA S REQUIRED TO BE DEDUCTED. THE AO CONFRONTED THE ASSESS EE ON THIS ISSUE. IT WAS EXPLAINED BY THE ASSESEE THAT LEASE AGREEMENT WITH PCNTDA WAS NOTHING BUT A SALE TRANSACTION ON WHICH PROVISIONS OF SECTION 194I WERE NOT APPLICABLE. THE AO, HOWEVER, WAS NOT CONVINCED WITH THE ARGUMENTS ADVANCED BY 3 ITA NOS.2015 & 2017/PN/2014 THE ASSESSEE. RELYING ON THE DECISION OF THE CHENNAI BEN CH OF THE TRIBUNAL IN THE CASE OF FOXCONN INDIA DEVELOPER PVT. L TD. VS. ITO, TDS IN ITA NO.292/MDS/2010 ORDER DATED 30-04-2012, THE AO HELD THAT TDS U/S.194I WAS REQUIRED TO BE DEDUC TED ON THE PAYMENT FOR CLEARING LEASEHOLD RIGHTS. THE AO ACCORDI NGLY RAISED DEMAND AMOUNTING TO RS.7,34,886/- U/S.201(1) AND LEVIED INTEREST AMOUNTING TO RS.2,86,605/- U/S.201(1A). 4. IN APPEAL THE LD.CIT(A) FOLLOWING THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF NAVI MUMBAI SEZ PVT. LTD. IN ITA NOS.7738 TO 7741/MUM/2012 ORDER DATED 12- 08-2013 FOR A.YRS. 2006-07 TO 2009-10 AND THE DECISION IN THE CASE OF M/S. WADHWA ASSOCIATES IN ITA NO.695/MUM/2012 ORDER DATED 03-07-2013 AND VARIOUS OTHER DECISIONS HELD THAT THE AO IS NOT JUSTIFIED IN RAISING DEMAND U/S.201(1) AND INTEREST U/S.201(1A) OF THE I.T. ACT IN RESPECT OF LEASE P REMIUM PAID TO PCNTDA. 5. AGGRIEVED WITH SUCH ORDER OF CIT(A) THE REVENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ER RED IN DELETING THE DEMAND RAISED OF RS 10,21,491/- U/S 201(1)/201(LA) OF THE INCOME TAX ACT 1961 IN RESPECT OF LEASE PREMI UM PAID TO PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ER RED IN NOT CONSIDERING THE FACT THAT THE LEASE PREMIUM PAID TO PCNTDA WAS COVERED BY THE DEFINITION OF RENT AS PER PROVISO OF SECTION 194I OF THE ACT. 3. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ER RED IN NOT APPRECIATING THE FACT THAT THE DEED ENTERED INTO THE DEDUCTOR WITH PCNTDA WAS NOT A TRANSFER DEED BUT A LE ASE DEED AND EXPLANATION TO SECTION 194I CLEARLY STIPULATES T HAT ANY PAYMENT BY WHATEVER NAME CALLED UNDER ANY LEASE AGRE EMENT IS TO BE TAKEN AS RENT FOR TDS PURPOSE. 4 ITA NOS.2015 & 2017/PN/2014 4. THE APPELLANT CRAVES TO ADD, ALTER OR AMEND AN Y OR ALL THE GROUNDS OF APPEAL. 6. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND IDENTICAL ISSUE HAD COME UP BE FORE THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ITO (TDS)- 3, PUNE VS. SHRI AJAY N. YERWADEKAR VIDE ITA NO.636/PN/2014 ORDE R DATED 14-08-2015. WE FIND THE TRIBUNAL IN THE SAID DECISIO N HAS HELD AS UNDER : 6. AFTER HEARING BOTH THE SIDES, WE FIND AN IDENTICA L ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF ITO VS. PR EETAM MEDICAL FOUNDATION & RESEARCH CENTRE VIDE ITA NO.190 /PN/2014 ORDER DATED 16-01-2015 WHEREIN SIMILAR DEMAND U/S.201 (1) & 201(1A) WAS RAISED BY THE AO IN RESPECT OF LEASE PREMIU M PAID TO PCNTDA. THE CIT(A) DELETED SUCH DEMAND AND ON APPEA L FILED BY THE REVENUE, THE TRIBUNAL DISMISSED THE APPEAL FILED B Y THE REVENUE BY HOLDING AS UNDER : 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELAT ION TO THE DEMAND RAISED UNDER SECTIONS 201(1) AND 201(1A) OF THE ACT IN RESPECT OF THE LEASE PREMIUM PAID TO PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY (PCNTDA). IN THE FACTS OF THE CASE BEFOR E US, THE ASSESSEE HAD ENTERED INTO 99 YEARS LEASE AGREEMENT THROUGH ITS C HAIRMAN WITH PCNTDA FOR USING 3261 SQ. MTRS. OF LAND LOCATED ON PLOT NO.1, IN SECTOR 13, CHIKHALI, TALUKA HAVELI, PUNE. THE SAID LAND W AS TO BE USED FOR EDUCATION PURPOSES AS PER CLAUSE (N) OF THE LEASE D EED. THE ASSESSEE PAID LEASE PREMIUM OF RS.1,37,36,963/- FOR THE SAID PLOT AND FURTHER AGREED TO PAY SUM OF RS.100/- PER ANNUM FOR THE ENT IRE PERIOD OF LEASE. THE ASSESSING OFFICER (TDS) WAS OF THE VIEW THAT TH E ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE UNDER SECTION 194 I OF THE ACT AT THE TIME OF PAYMENT OF LEASE PREMIUM TO PCNTDA. THE AS SESSING OFFICER ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE AND ALSO ISSUED SUMMONS TO THE DEDUCTOR. IN REPLY, THE ASSESSEE EXPLAINED THA T THE TRANSACTION BETWEEN IT AND PCNTDA WAS A TRANSACTION OF SALE AND FURTHER APPROPRIATE TAX RETURN HAD BEEN FILED BY IT. THE A SSESSING OFFICER WAS OF THE VIEW THAT THE TRANSACTION BETWEEN THE PARTIES W AS NOT THAT OF TRANSFER, BUT OF LEASE AND THERE WAS NO TRANSFER OF OWNERSHIP OF THE PROPERTY, BUT THE SAME WAS LEASED FOR USE EITHER FO R COMMERCIAL OR RESIDENTIAL PURPOSES AS APPROVED BY THE LESSOR. HO WEVER, THE ASSESSING OFFICER REFERRED TO THE VARIOUS RESTRICTIONS ON THE LESSEE / ASSESSEE PUT UP BY THE LESSOR AND IT WAS OBSERVED BY THE ASSESSI NG OFFICER THAT THIS WAS NOT A CASE OF FREEHOLD TRANSFER OR SALE AND THE ASSESSEE WAS NOT THE ABSOLUTE OWNER OF THE PROPERTY. THE ASSESSING OFFI CER THUS, CONCLUDED THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURC E UNDER SECTION 194 I OF THE ACT ON THE LEASE PREMIUM PAID TO PCNTDA. TH E ASSESSEE HAVING FAILED TO DEDUCT TAX AT SOURCE, WAS HELD TO BE IN D EFAULT UNDER SECTION 201(1) OF THE ACT AT RS.13,73,696/- AND FURTHER INT EREST UNDER SECTION 5 ITA NOS.2015 & 2017/PN/2014 201(1A) OF THE ACT WAS CHARGED AT RS.82,416/-. REL IANCE WAS PLACED ON THE RATIO LAID DOWN BY CHENNAI BENCH OF THE TRIBUNA L IN FOXCONN INDIA DEVELOPER (P) LTD. VS. ITO (TDS) (SUPRA). 6. THE CIT(A) AFTER CONSIDERING THE FACTS AND REPLY FILED BY THE ASSESSEE, OBSERVED THAT NO DOUBT, AFTER 99 YEARS OF LEASE, THE LEASE HOLD RIGHT EXPIRED AND THE LESSOR WAS VESTED WITH THE FU LL RIGHTS ON THE SAID PLOT OF LAND, WITH THE OPTION EITHER TO RENEW THE L EASE FOR FURTHER PERIOD AND TAKE BACK THE POSSESSION OF THE LAND. HOWEVER, THE PRELIMINARY CLAUSE OF THE LEASE AGREEMENT REFLECTS THAT THE PAY MENT OF LEASE PREMIUM WAS A PRE-CONDITION FOR ENTERING INTO LEASE AGREEME NT. THE CIT(A) HAS REPRODUCED THE PRELIMINARY CLAUSE OF THE LEASE AGRE EMENT AT PAGE 7 OF THE APPELLATE ORDER, WHICH ARE NOT BEING REPRODUCED FOR THE SAKE OF BREVITY. THE CIT(A) THUS, HELD THAT THE PAYMENT OF LEASE PREMIUM OF RS.1,37,36,963/- WAS A PRE-CONDITION FOR ENTERING I NTO THE LEASE AGREEMENT AND THE SAME WAS NOT UNDER THE LEASE DEED , THEREFORE, THE PAYMENT OF LEASE PREMIUM FELL OUTSIDE THE PURVIEW O F DEFINITION OF RENT AS PROVIDED UNDER SECTION 194I OF THE ACT. IT WAS FURTHER POINTED OUT BY THE CIT(A) THAT THERE IS NO MERIT IN THE RELIANCE P LACED UPON THE DECISION OF CHENNAI BENCH OF THE TRIBUNAL IN FOXCONN INDIA D EVELOPER (P) LTD. VS. ITO (TDS) (SUPRA) AS THE SAME WAS DISTINGUISHABLE O N FACTS. IN THE FACTS OF THE CASE BEFORE THE TRIBUNAL, THE ISSUE IN QUEST ION WAS UPFRONT PAYMENT OF LEASE AND FURTHER THE SAID UPFRONT PAYME NT WAS PART OF THE CONDITIONS FOR ACQUIRING LEASEHOLD RIGHTS, UNLIKE T HE PRESENT CASE WHERE, THE PAYMENT OF LEASE PREMIUM WAS A PRE-CONDITION FO R ENTERING INTO A LEASE AGREEMENT. THE CIT(A) PLACED RELIANCE ON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN NAVI MUMBAI SEZ(P) LTD IN ITA NO.738 TO 7741/MUM/2012, RELATING TO ASSESSMENT YEARS 2006-07 TO 2009-10, VIDE ORDER DATED 12.08.2013, IN ORDER TO HOLD THAT THE PAYMENT OF LEASE PREMIUM TO PCNTDA BEING A PRE-CONDITION FOR ENTERIN G INTO LEASE AGREEMENT, COULD NOT BE SAID TO BE PAID UNDER THE T ERMS OF LEASE AGREEMENT. FURTHER, STAMP DUTY HAD BEEN PAID ON TH E MARKET VALUE OF THE PLOT REPRESENTED BY LEASE PREMIUM. IN VIEW THE REOF, THE ASSESSING OFFICER WAS DIRECTED TO DELETE THE DEMAND CREATED U NDER SECTIONS 201(1) AND 201(1A) OF THE ACT. 7. THE ISSUE ARISING IN THE PRESENT APPEAL IS SQUAR ELY COVERED BY THE RATIO LAID DOWN BY THE CO-ORDINATE BENCH OF THE TRI BUNAL IN ITO VS. CAMP EDUCATION SOCIETY (SUPRA), WHEREIN IT WAS HELD AS U NDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE WAS AN EDUCATIONAL SOCIETY RE GISTERED UNDER SECTION 12A OF THE ACT. THE ASSESSEE WAS RUNNING V ARIOUS SCHOOLS AND COLLEGES IN THE CITY OF PUNE. DURING THE YEAR UNDER CONSIDERATION, IN ORDER TO ESTABLISH ANOTHER SCHOOL IN PIMPRI CHINCHWAD AREA, THE ASSESSEE IN REPLY TO AN ADVERTI SEMENT BY PCNTDA, APPLIED FOR A PLOT ON LEASEHOLD BASIS. AS PER THE BID DOCUMENT, WHERE THE BID QUOTED BY A PARTY ACCEPTED, THE SAID PARTY WAS REQUIRED TO PAY THE QUOTED AMOUNT I.E. TH E PREMIUM WITHIN 3 MONTHS OF THE LETTER OF ALLOTMENT. IN CAS E SUCH PREMIUM WAS NOT PAID WITHIN PERIOD OF 3 MONTHS, 25% OF THE TENDER DEPOSIT WAS TO BE FORTIFIED AND BALANCE AMOUNT WAS TO BE RE FUNDED WITHOUT ANY INTEREST. THE TENDER DOCUMENT STATED THAT THE TENDER WAS FOR THE PURPOSE OF SALE OF RESERVED PLOTS AND AS PER TH E DOCUMENT FULL PREMIUM WAS TO BE PAID TO PCNTDA AND LEASE AGREEMEN T WOULD BE ENTERED WITH THE PARTY. THE ASSESSEE ENTERED INTO A LEASE AGREEMENT WITH PCNTDA FOR 99 YEARS AND THE LEASE RE NT WAS RS.100/- PER ANNUM FOR THE PERIOD OF 99 YEARS. THE ASSESSEE ACCORDINGLY, DEPOSITED THE PREMIUM AMOUNT OF RS.2,2 0,24,860/-. AFTER RECEIVING THE PREMIUM AMOUNT, THE LICENSER I. E. PCNTDA AGREED TO EXECUTE LEASE DEED TO CONVEY / TRANSFER / ASSIGN THE LEASEHOLD RIGHTS. THE LEASE DEED AUTHORIZES THE AS SESSEE TO BUILD / 6 ITA NOS.2015 & 2017/PN/2014 CONSTRUCT ANY BUILDING ON THE SAID PLOT OF LAND. T HE CASE OF THE ASSESSEE WAS THAT THE PAYMENT OF PREMIUM WAS A PRE- CONDITION FOR OBTAINING THE LEASE RIGHTS AND IT WAS ONLY AFTER PA YMENT OF THE LEASE PREMIUM, THE LEASE AGREEMENT WAS ENTERED INTO AND BUNDLE OF RIGHTS WERE OBTAINED BY THE ASSESSEE. 7. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE DE FAULT IN RESPECT OF THE TDS PAYABLE ON SUCH LEASE RENT PAYME NT TO PCNTDA. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE C HENNAI BENCH OF THE TRIBUNAL IN FOX CONN INDIA DEVELOPER (P) LTD . (SUPRA). THE ASSESSEE WAS HELD TO BE IN DEFAULT FOR NON-DEDUCTIO N OF TAX ON SOURCE UNDER SECTION 194I OF THE ACT ON THE LEASE P REMIUM PAID TO PCNTDA AND DEMAND UNDER SECTION 201(1) OF THE ACT W AS RAISED AND INTEREST UNDER SECTION 201(1A) OF THE ACT WAS C HARGED, RAISING A DEMAND OF RS.22,90,585/-. 8. THE CIT(A) VIDE PARA 8 REFERRED TO THE PRELIMINA RY CLAUSES OF THE AGREEMENT ENTERED INTO BETWEEN ASSESSEE AND PCNTDA AND POINTED OUT THAT THE LEASE PREMIUM FINDS MENTION IN THE LEASE DEED BUT THE SAID PAYMENT OF LEASE PREMIUM WAS A PR E-CONDITION FOR ENTERING INTO LEASE AGREEMENT. THE CIT(A) THUS , HELD THAT SAME WAS NOT UNDER THE LEASE DEED AND THE PAYMENT OF LEA SE PREMIUM FALLS OUTSIDE THE PURVIEW OF DEFINITION OF RENT AS SPECIFIED IN SECTION 194I OF THE ACT. THE CIT(A) FURTHER OBSERVED FROM THE RATIO LAID DOWN IN THE CASE OF FOX CONN INDIA DEVELOPER (P) LT D. (SUPRA) WAS DISTINGUISHABLE ON THE FACTS AS IN THAT CASE ISSUE IN QUESTION WAS UPFRONT PAYMENT AND NOT LEASE PREMIUM. FURTHER, UP FRONT PAYMENT WAS PART OF CONSIDERATION FOR ACQUIRING LEA SEHOLD RIGHTS UNLIKE THE PRESENT CASE WHERE PAYMENT OF LEASE PREM IUM WAS PRE- CONDITION FOR ENTERING INTO LEASE AGREEMENT AND THE REFORE THE FACTS OF THE CASE WERE CLEARLY DISTINGUISHABLE. FURTHER RELIANCE WAS PLACED ON THE SERIES OF DECISIONS, UNDER WHICH SUCH SIMILAR PAYMENT OF LEASE PREMIUM WAS HELD TO BE NOT SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER SECTION 194I OF THE ACT. 9. WE FIND THAT SIMILAR ISSUE OF PAYMENT OF LEASE P REMIUM AROSE BEFORE THE MUMBAI BENCH OF THE TRIBUNAL IN TH E CASE OF NAVI MUMBAI SEZ (P) LTD. IN ITA NOS.738 TO 740/MUM/2012 FOR ASSESSMENT YEARS 2006-07 TO 2009-10, WHEREIN THE TR IBUNAL IN ITS ORDER DATED 12.08.2013, HELD THAT LEASE PREMIUM PAI D BY THE ASSESSEE TO THE CITY AND INDUSTRIAL DEVELOPMENT COR PORATION OF MAHARASHTRA LTD. (CIDCO) FOR ACQUIRING DEVELOPMENT AND LEASEHOLD RIGHTS FOR A PERIOD OF 60 YEARS, WAS NOT REQUIRED TO BE SUBJECT TO DEDUCTION AT SOURCE UNDER SECTION 194I O F THE ACT. FURTHER ANOTHER BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF M/S. WADHWA ASSOCIATES IN ITA NO.695/MUM/2012, VIDE ORDE R DATED 03.07.2013, HELD THAT TDS WAS NOT REQUIRED TO BE DE DUCTED UNDER SECTION 194I OF THE ACT IN RESPECT OF PAYMENT OF LE ASE PREMIUM TO M/S. MMRD LTD. 10. IN VIEW OF ABOVE SAID FACTS AND CIRCUMSTANCES, WHEREIN THE LEASE PREMIUM WAS PAID TO PCNTDA BY THE ASSESSEE AS A PRE- CONDITION FOR ENTERING INTO A LEASE AGREEMENT, THE SAME CANNOT BE SAID TO HAVE BEEN PAID CONSEQUENT TO THE LEASE AGRE EMENT EXECUTED BETWEEN THE PARTIES. FURTHER, THE CIT(A) HAS GIVEN A FINDING THAT STAMP DUTY HAD BEEN PAID ON THE MARKET VALUE OF THE PLOT REPRESENTED BY THE LEASE PREMIUM, WHICH HAS NOT BEE N CONTROVERTED BY THE LEARNED DEPARTMENTAL REPRESENTA TIVE FOR THE REVENUE. RELYING UPON THE RATIO LAID DOWN BY THE M UMBAI BENCH OF THE TRIBUNAL IN THREE DIFFERENT CASES, WE UPHOLD THE ORDER OF CIT(A) IN HOLDING THAT THE LEASE PREMIUM PAID BY TH E ASSESSEE IS OUTSIDE THE PURVIEW OF SECTION 194I OF THE ACT AND THE ASSESSING 7 ITA NOS.2015 & 2017/PN/2014 OFFICER WAS NOT JUSTIFIED IN RAISING THE DEMAND UND ER SECTION 201(1) AND 201(1A) OF THE ACT. THE GROUNDS OF APPE AL RAISED BY THE REVENUE ARE THUS, DISMISSED. 8. FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT WHERE THE LEASE PREMIUM PAID TO PCNTDA WAS A PRE-CONDITION FO R ENTERING INTO THE LEASE AGREEMENT, THE SAME NOT BEING PAID CONSEQUENT TO THE EXECUTION OF THE LEASE AGREEMENT, CANNOT BE SAID TO BE PAYMENT I N LIEU OF RENT AS ENVISAGED UNDER SECTION 194 I OF THE ACT. IN ADDIT ION, THE ASSESSEE HAD PAID STAMP DUTY ON THE MARKET VALUE OF THE PLOT REP RESENTED BY THE LEASE PREMIUM AND THE SAID FINDING OF THE CIT(A) HAVING N OT BEEN CONTROVERTED BY THE LEARNED DEPARTMENTAL REPRESENTA TIVE FOR THE REVENUE, WE FIND NO MERIT IN THE APPEAL FILED BY TH E REVENUE. ACCORDINGLY, WE UPHOLD THE ORDER OF CIT(A) AND DISM ISS THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 7. SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF PREE TAM MEDICAL FOUNDATION & RESEARCH CENTRE (SUPRA), THEREFORE, RESP ECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF TH E TRIBUNAL AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR N OTICE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) DELETING TH E DEMAND RAISED U/S.201(1)/201(1A) OF THE I.T. ACT IN RESPECT OF LEASE PREMIUM PAID TO PCNTDA. ACCORDINGLY, THE ORDER OF THE CIT( A) IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7. SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO TH E FACTS OF THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF SHRI AJAY N. YERWADEKAR (SUPRA) TO WHICH BOTH OF US ARE PARTIES, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) DELETIN G THE DEMAND RAISED U/S.201(1)/201(1A) OF THE I.T. ACT IN RESP ECT OF LEASE PREMIUM PAID TO PCNTDA. ACCORDINGLY, THE ORDER O F THE CIT(A) IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. ITA NO.2017/PN/2014 (M/S. NIRMAN ASSOCIATES) : 8. GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) E RRED IN DELETING THE DEMAND RAISED OF RS 68,56,408/- U/S 201(1)/201(1A) OF THE INCOME TAX ACT 1961 IN RESPECT OF LEASE PREMIUM PAID TO PIMPRI CHINCHWAD NEW TOWNSHIP DEVELO PMENT AUTHORITY. 8 ITA NOS.2015 & 2017/PN/2014 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN NOT CONSIDERING THE FACT THAT THE LEASE PREMIUM PA ID TO PCNTDA WAS COVERED BY THE DEFINITION OF RENT AS PER PROVISO OF SECTION 194I OF THE ACT 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN NOT APPRECIATING THE FACT THAT THE DEED ENTERED INTO THE DEDUCTOR WITH PCNTDA WAS NOT A TRANSFER DEED BUT A LE ASE DEED AND EXPLANATION TO SECTION 194I CLEARLY STIPULATES T HAT ANY PAYMENT BY WHATEVER NAME CALLED UNDER ANY LEASE AGRE EMENT IS TO BE TAKEN AS RENT FOR TDS PURPOSE 4. THE APPELLANT CRAVES TO ADD, ALTER OR AMEND AN Y OR ALL THE GROUNDS OF APPEAL. 9. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AN D ON PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PROMOTERS AND DEVELOPERS. IN THE F.Y. 2010-11 IT PURCH ASED LEASEHOLD PLOT FROM PIMPRI CHINCHWAD NEW TOWNSHIP DEVELOPMENT AUTHORITY (PCNTDA IN SHORT) FOR THE PURPOSE O F DEVELOPMENT OF A RESIDENTIAL AND A COMMERCIAL COMPLEX. LEAS E AGREEMENT WAS EXECUTED FOR 99 YEARS FOR WHICH THE ASS ESSEE FIRM HAS PAID TOTAL LEASE PREMIUM OF RS.5,39,87,590/- AS COST OF THIS LEASEHOLD PLOT AND ALSO AGREED TO PAY RS.100/- PER A NNUM AS LEASE RENT FOR THE ENTIRE LEASE PERIOD. ACCORDING TO T HE AO THE ASSESSEE HAS ACTUALLY PAID THE LEASE RENT AND THER EFORE THE PROVISIONS OF SECTION 194I ARE APPLICABLE FOR LEASE PREMIUM . SINCE THERE IS DEFAULT ON THE PART OF THE ASSESSEE AS CONTEMPLATED UNDER SECTION 201(1) THE AO COMPUTED THE LIABILITY U/S.201(1) AT RS.53,98,759/- AND LEVIED INTEREST U/S.201(1A) AT RS.14,57,649/-. 9 ITA NOS.2015 & 2017/PN/2014 10. IN APPEAL THE LD.CIT(A) FOLLOWING VARIOUS DECISIONS DELETED THE DEMAND RAISED U/S.201(1)/201(1A) FOR WHICH THE REVENUE IS IN APPEAL BEFORE US. 11. WE FIND THE GROUNDS RAISED BY THE REVENUE IN THE AB OVE APPEAL ARE IDENTICAL TO THE GROUNDS IN ITA NO.2015/PN/201 4. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISE D BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAME REASONINGS, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 12. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-02-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 10 TH FEBRUARY, 2016. ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A ) - V, PUNE 4. 5. 6. THE CIT-V, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // // $ ' //TRU /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE