Nayef Estates Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 3062/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87056 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA
• Assessee Lawyers: PRADEEP DENODIA
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E, NEW DELHI) BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 3062/DEL/2012 ASSESSMENT YEAR : 2008-09 NAYEF ESTATES PVT. LTD., VS. ITO, WARD 13(2), 1-E, NAAZ CINEMA COMPLEX, NEW DELHI JHANDEWALAN EXTENSION, NEW DELHI. GIR / PAN:AACCN5301Q I.T.A.NO. 4059/DEL/2012 (ASSESSMENT YEAR 2008-09) ITO, WARD 13(2), VS. NAYEF ESTATES PVT. LTD., NEW DELHI 1-E, NAAZ CINEMA COMPLEX, JHANDEWALAN EXTN. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRADEEP DENODIA, CA RESPONDENT BY : SHRI P DAM KANUNJHA, SR. DR DATE OF HEARING : 16.03.2015 DATE OF PRONOUNCEMENT : 25.03.2015 ORDER PER T.S. KAPOOR, AM: THESE ARE CROSS APPEALS FIELD BY ASSESSEE AND THE REVENUE RESPECTIVELY AGAINST THE ORDER OF LD. CIT(A) DATED 29.02.2012 T HE GROUNDS OF APPEAL TAKEN BY ASSESSEE AS WELL AS REVENUE ARE REPRODUCED BELOW: ITA NO.3062, 4059/DEL/2012 2 I.T.A.NO. 3062/DEL/2012 (ASSESSMENT YEAR 2008-09): 1. THAT THE IMPUGNED ORDER DATED 29.02.2012 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, N EW DELHI IS BAD IN LAW AND WRONG ON FACTS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)XVI ERRED IN LA W IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN MAKING DISAL LOWANCE U/S 40(A)(IA) OF THE INCOME-TAX ACT, 1961 AMOUNTING TO RS. 3,20,47,734/- PAID BY THE ASSESSEE TO THE CONSOLIDATOR FOR TRANSF ER OF RIGHTS. 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI ERRED IN L AW IN HOLDING THAT PAYMENT MADE BY THE APPELLANT TO CONSOLIDATOR IS IN THE NATURE OF COMMISSION / BROKERAGE / FEES FOR SERVICES ON WHICH TDS WAS REQUIRED TO BE DEDUCTED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI ERRED IN N OT CONSIDERING THE ORDER DATED 05.10.2011 IN ITA NO. 2361 (DEL) 20 11 OF ITAT, NEW DELHI IN THE CASE OF FINIAN ESTATES DEVELOPERS PVT. LTD FOR THE A.Y. 2007-08 FILED DURING THE APPELLATE PROCEEDINGS, WHE REIN HON'BLE ITAT HAS HELD THAT PROVISION OF SECTION 40(A) (IA) OF TH E I.T. ACT, DOES NOT GET INVOKED WITH RESPECT TO PAYMENT MADE TO CONSOLI DATOR. I.T.A.NO. 4059/DEL/2012 (ASSESSMENT YEAR 2008-09): 1. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT QUANTIFYING THE DISALLOWANC E U/S 40(A)(IA) AS THE PAYMENT OF RS.3,20,47,734/~ MADE BY THE ASSESSE E FOR CONSOLIDATION OF A LAND DEAL TO M/S VIKRAM ELECTRIC EQUIPMENT PVT. LTD. COMPRISES COST OF LAND AS WELL AS CONSOLIDATIO N FEE PAID TO M/S VIKRAM ELECTRIC EQUIPMENT PVT. LTD. FOR ITS SERVICE S OF FINALIZING THE DEAL. THE ASSESSEE HAS CLAIMED THE CONSOLIDATION FE ES, WHICH IS SUBJECT MATTER OF TDS UNDER THE WRONG HEAD I.E. PURCHASE OF LAND IN THE P&L A/C IN ORDER TO AVOID TAX LIABILITY.' ITA NO.3062, 4059/DEL/2012 3 2. AT THE OUTSET, LD. A.R. SUBMITTED THAT THE APPEA L OF ASSESSEE IS COVERED BY THE EARLIER ORDER OF THE TRIBUNAL BY THE CASE OF GROUP COMPANIES OF ASSESSEE AND IN THIS RESPECT, OUR ATTENTION WAS INVITED TO PAPER BOOK FILED BY ASSESSEE. IT WAS SUBMITTED THAT SOLITARY ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER THE AMOUNT PAID TO CONSOLIDATOR M/S. VIK RAM ELECTRIC EQUIPMENT PVT. LTD. AMOUNTING TO RS.3,20,47,734/- WAS LIABLE TO BE DISALLOWED U/S 40(A)(IA) FOR NON DEDUCTION OF TDS U/S 194C OF THE ACT. IT WAS SUBMITTED THAT THIS ISSUE HAD COME UP IN VARIOUS CASES WHERE THE HONBLE ITAT HAD DECIDED THE SAME IN FAVOUR OF ASSESSEE. LD. A.R. P LACED HIS RELIANCE ON THE FOLLOWING CASE LAWS: I) FINIAN ESTATE DEVELOPERS PVT. LTD. VS ITO 142 TT J 545 II) ZEBINA REAL ESTATE PVT. LTD. & ZENOBI BUILDERS & CONSTRUCTIONS PVT. LTD. IN I.T.A.NO. 1429 AND 1430/DEL/.2011. III) M/S. ETHAN ESTATE DEVELOPMENTS PVT. LTD. IN I. T.A.NO. 1952/DEL/2011 IV) M/S. RED TOPAZ REAL ESTATE PVT. LTD. IN I.T.A.N O.1501/DEL/2011. V) M/S. FULLBRIGHT BUILDERS & DEVELOPERS PVT. LTD. IN I.T.A.NO. 1954/DEL/2011. VI) M/S. PENTHEA BUILDERS & DEVELOPERS PVT. LTD. IN I.T.A.NO. 1951/DEL/2011. 3. LD. A.R. FURTHER SUBMITTED THAT THE LEAD CASE DE CIDED BY THE TRIBUNAL WAS IN THE CASE OF FINIAN ESTATE DEVELOPERS PVT. LT D. AND IN ALL OTHER CASES, THIS LEAD CASE HAS BEEN FOLLOWED. IT WAS FURTHER S UBMITTED THAT THE DEPARTMENT HAS NOT FILED ANY APPEAL BEFORE HON'BLE HIGH COURT AGAINST THE ORDER OF TRIBUNAL IN THE CASE OF FINIAN ESTATE DEVE LOPERS PVT. LTD. AND THEREFORE, THE ISSUE HAS BECOME FINAL. ITA NO.3062, 4059/DEL/2012 4 4. LD. D.R. ON THE OTHER HAND SUBMITTED THAT THE AS SESSEE HAD PAID COMMISSION AND BROKERAGE AND IT AVOIDED APPLICABILI TY OF TAX DEDUCTION AT SOURCE AS IT USED THE WORD CONSOLIDATOR INSTEAD O F BROKER AND LD.D.R. HEAVILY RELIED UPON THE ORDERS OF AUTHORITIES BELOW . 5. REGARDING APPEAL FILED BY REVENUE, LD. D.R. SUBM ITTED THAT THE ASSESSEE HAD WRONGLY CLAIMED THE AMOUNT OF CONSOLID ATION FEE UNDER THE WRONG HEAD OF PURCHASE OF LAND IN THE P & L ACCOUNT IN ORDER TO AVOID TAX LIABILITY. THE LD. A.R. ON THE OTHER HAND SUBMITTE D THAT THE ASSESSEE BEING IN THE BUSINESS OF DEVELOPMENT OF LAND, HAS TREATED THE PURCHASE OF LAND ALONG WITH CONSOLIDATION FEE AS PURCHASE OF LAND A ND THIS WAS AS PER THE PRACTICE FOLLOWED BY VARIOUS ASSESSEES ENGAGED IN T HE SIMILAR KIND OF ACTIVITIES. 6. WE HAVE HAD RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE COMPANY WAS I NCORPORATED AND ENGAGED IN THE BUSINESS OF REAL ESTATE AND OTHER AL LIED ACTIVITIES. THE ASSESSEE HAD APPOINTED M/S. VIKRAM ELECTRIC EQUIPME NTS (P) LTD. AS CONSOLIDATOR FOR PROCURING LAND IN AND AROUND GURGA ON FOR THE ASSESSEE COMPANY AND THE ROLE OF CONSOLIDATOR WAS ON PRINCIP AL TO PRINCIPAL BASIS. THE ASSESSEE HAD PAID COMMISSION TO M/S. VIKRAM ELE CTRIC EQUIPMENTS (P) LTD. FOR PROCURING LAND IN AND AROUND GURGAON AND T HE A.O. HELD THAT THE PAYMENT REPRESENTED THE COMMISSION FOR PURCHASE OF LAND AND, THEREFORE, WAS LIABLE FOR TDS WHICH THE ASSESSEE HAD NOT DONE AND THEREFORE HE MADE DISALLOWANCE U/S 40(A)(IA) OF THE ACT. WE FIND THA T IN A SERIES OF CASES AS RELIED UPON BY LD. A.R., THE PAYMENT TO VIKRAM ELEC TRIC & EQUIPMENTS PVT. LTD. UNDER SIMILAR FACTS AND CIRCUMSTANCES HAS BEEN HELD TO HAVE BEEN MADE ITA NO.3062, 4059/DEL/2012 5 ON PRINCIPAL TO PRINCIPAL BASIS AND, THEREFORE, THE TRIBUNAL HAS HELD THAT THERE WAS NO REQUIREMENT FOR TDS. FOR THE SAKE OF CONVEN IENCE THE FINDINGS OF THE TRIBUNAL IN I.T.A. NO. 2361 AND 1953//DEL/2011 IN THE CASE OF FINIAN ESTATE DEVELOPERS PVT. LTD. ARE REPRODUCED AS UNDER : 23. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. THE A.O. OBSERVED THAT THE ASSESSEE HAD SH OWN PURCHASES AND CLOSING STOCK OF LAND AT RS.60,23,16,022/-. TH IS INCLUDED A SUM OF RS,4,20,15,681/- PAID BY THE ASSESSEE TO M/S. VIKRA M ELECTRIC EQUIPMENT P. LTD. M/S. VIKRAM ELECTRIC EQUIPMENT P. LTD. HAD BEEN APPOINTED BY THE ASSESSEE AS A CONSOLIDATOR TO ACQU IRE AND CONSOLIDATE THE LAND HOLDING. IT WAS OBSERVED BY T HE A.O. THAT AS PER THE MOU WITH VIKRAM ELECTRIC EQUIPMENT P .LTD. PAYM ENTS WERE TO ACCRUE TO VIKRAM ELECTRIC EQUIPMENT P. LTD. ONLY ON ACQUISITION OF A MINIMUM OF 27 ACRES OF LAND. OBSERVING THAT THE CO NSOLIDATOR, I.E. VIKRAM ELECTRIC EQUIPMENT P. LTD. HAD NOT CONSOLIDA TED THE REQUISITE MINIMUM 27 ACRES OF LAND DURING THE YEAR, THE A.O. DISALLOWED THE AMOUNT OUT OF PURCHASES. ACCORDINGLY, HE ALSO REDU CED THE CLOSING STOCK BY A SIMILAR AMOUNT. THE CLOSING STOCK WAS T HUS DETERMINED AT RS.54,03,00,341/-. 24. BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED T HAT THE AMOUNT INVOLVED WAS NOT OF RS.4,20,15,641/-, SINCE VIKRAM ELECTRIC EQUIPMENT P. LTD. HAD BEEN PAID ONLY RS.1,24,33,376 /-. IT WAS ON THIS CONTENTION OF THE ASSESSEE THAT THE LD. CIT(A) DIRE CTED THE A.O. TO VERIFY THE ACTUAL AMOUNT INVOLVED. 25. IT HAS BEEN MAINTAINED BY THE ASSESSEE ALL THRO UGH THAT THE PAYMENT TO VIKRAM ELECTRIC EQUIPMENT P. LTD. WAS ON ACCOUNT OF TRANSFER OF CERTAIN RIGHTS OF VIKRAM ELECTRIC EQUIP MENT P. LTD. IN THE LANDS TRANSFERRED TO THE ASSESSEE AND WAS NOT TOWAR D ANY SERVICES RENDERED. AS A CONSOLIDATOR, VIKRAM ELECTRIC EQUIP MENT P. LTD. WAS TO CONTACT THE LOCAL FARMERS IN AND AROUND GURGAON, WHO WERE WILLING TO SELL THEIR LAND. VIKRAM ELECTRIC EQUIPMENT P. L TD. WAS MAKING PAYMENTS FROM ITS ACCOUNT TO THE FARMERS AND THERET O HAVE CERTAIN RIGHTS IN THE LAND. ON THE ULTIMATE TRANSFER OF LA ND TO THE ASSESSEE ITA NO.3062, 4059/DEL/2012 6 THROUGH VIKRAM ELECTRIC EQUIPMENT P. LTD., THE FINA L PAYMENT WAS TO BE MADE TO THE FARMERS. TOWARDS THE RIGHT OF VIKRA M ELECTRIC EQUIPMENT P. LTD., 2% OF THE COST OF LAND (IN SOME CASES, EVEN A HIGHER AMOUNT0 WAS TO BE PAID TO VIKRAM ELECTRIC EQ UIPMENT P. LTD., AS MUTUALLY AGREED. THIS WAS THE MUTUALLY AGREED P RICE. VIKRAM ELECTRIC EQUIPMENT P. LTD. WORKED FOR LAND ACQUISIT ION AND AFTER SCRUTINY OF THE CONCERNED DOCUMENTS OF THE LAND, VI KRAM ELECTRIC EQUIPMENT P. LTD. WOULD SUGGEST THE APPROPRIATE LAN D FOR PURCHASE BY THE ASSESSEE. VIKRAM ELECTRIC EQUIPMENT P. LTD. TH US ACTED WITH THE FARMERS ON ITS OWN ACCOUNT RATHER THAN FOR AND ON B EHALF OF THE ASSESSEE, ON PRINCIPLE TO PRINCIPLE BASIS, WITH THE FARMERS ON THE ONE HAND AND THE ASSESSEE ON THE OTHER. THE ASSESSEE C ONTENDS THAT THIS BEING SO, THE PROVISIONS OF NEITHER SECTION 194C, N OR SECTION 194H GET ATTRACTED TO THE PAYMENT MADE BY THE ASSESSEE TO VI KRAM ELECTRIC EQUIPMENT P. LTD. THE PAYMENT ALONG WITH PAYMENT M ADE TO THE FARMERS DIRECTLY REPRESENTED THE PURCHASE OF THE CO ST OF LAND AND HAD BEEN CORRECTLY TREATED AS SUCH IN THE ASSESSEES BO OKS OF ACCOUNT. IT HAS BEEN CONTENDED THAT ALTERNATIVELY, IN ANY CASE, THE PAYMENT MADE TO VIKRAM ELECTRIC EQUIPMENT P. LTD. HAS NOT AFFECT ED THE TAXABLE PROFITS OF THE ASSESSEE DURING THE YEARS. THE TOTA L PURCHASES WERE LYING AS CLOSING STOCK, AS OBSERVED BY THE TAXING A UTHORITIES ALSO AND THE EFFECT OF ADJUSTMENT WITH REGARD TO THE AMOUNT PAID TO VIKRAM ELECTRIC EQUIPMENT P. LTD. WOULD ARISE ONLY ON AND IN THE INSTANCES OF THE SALE OF LAND BY THE ASSESSEE. IT IS AS SUCH TH AT IT HAS BEEN CLAIMED THAT NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT IS CA LLED FOR, MUCH LESS ANY CONSEQUENTIAL ACTION U/S 201 OF THE ACT. IT HA S BEEN CONTENDED THAT VIKRAM ELECTRIC EQUIPMENT P. LTD. HAD AN IMPOR TANT ROLE TO PLAY AS A CONSOLIDATOR, SINCE THE ASSESSEE REQUIRED CONT IGUOUS LAND HOLDINGS IN ORDER TO DEVELOP A COLONY. IN CASE ANY LAND WHICH WAS AGREED TO BE ACQUIRED BY VIKRAM ELECTRIC EQUIPMENT P. LT. WAS NOT FOUND TO BE SUITABLE, IT WAS VIKRAM ELECTRIC EQUIPM ENT P. LTD. WHICH WOULD HAVE TO BEAR THE CONSEQUENCES, INDICATING THA T VIKRAM ELECTRIC EQUIPMENT P. LTD. WAS NOT ACTING AS AN AGENT ON BEH ALF OF THE ASSESSEE, BUT WAS WORKING ON A PRINCIPLE TO PRINCIP LE BASIS, INDEPENDENTLY. ITA NO.3062, 4059/DEL/2012 7 26. THE STAND OF THE DEPARTMENT, ON THE OTHER HAND, HAS BEEN THAT MOU SIGNED BY THE ASSESSEE AND VIKRAM ELECTRIC EQUI PMENT P. LTD. LAYS DOWN THAT VIKRAM ELECTRIC EQUIPMENT P. LTD. WA S ACTING AS AN AGENT OF THE ASSESSEE, RENDERING SERVICES, FOR WHIC H, THE PROVISIONS OF SECTION 194 H OF THE ACT ARE APPLICABLE AND IT IS C ORRECTLY APPLIED BY THE LD. CIT(A). 27. IN THIS REGARD, IT IS SEEN THAT CLAUSE 3.2 OF H T MOU BETWEEN THE ASSESSEE AND VIKRAM ELECTRIC EQUIPMENT P. LTD. MAKE S IT CLEAR THAT VIKRAM ELECTRIC EQUIPMENT P. LTD. OR ITS AGENT AGRE ED TO ASSIGN THEIR RIGHTS TO PURCHASE THE LAND IN FAVOUR OF THE ASSESS EE. IT WOULD BE APPROPRIATE TO REPRODUCE HERE, THE SAID CLAUSE 3.2: - 3.2 IN CONSIDERATION OF THE CONSOLIDATOR OR ITS AGE NT/NOMINEE ASSIGNING ITS RIGHTS TO PURCHASE THE LAND IN FAVOUR OF THE BUYER COMPANY AND CAUSING THE LAND OWNERS TO EXECUTE THE SALE DEEDS DIRECTLY IN FAVOUR OF THE BUYER COMPANY, THE BUYER COMPANY SHALL PAY THE CONSOLIDATOR SUCH SUM AS MAY BE MUTUA LLY AGREED. HOWEVER, IT IS SPECIFICALLY AGREED BY THE CONSOLIDA TOR THAT NO SUM SHALL ACCRUE TO IT ON THIS ACCOUNT TILL IT PROC URES 27 ACRES OF LAND FOR THE BUYER COMPANY (UNLESS THE BUYER COMPAN Y DECIDES TO PROCURE LESS THAN 27 ACRES THROUGH THE CONSOLIDA TOR) AND ALL THE ISSUES RELATING TO POSSESSION AND MUTATION OF S UCH LAND ARE SETTLED TO THE SATISFACTION OF THE BUYER COMPANY. 28. THE ABOVE CLAUSE ALSO MAKES IT EVIDENT THAT UNL ESS THE ASSESSEE DECIDED TO PROCURE LESS THAN 27 ACRES OF LAND THROU GH VIKRAM ELECTRIC EQUIPMENT P. LTD., VIKRAM ELECTRIC EQUIPMENT P. LTD ., WAS TO PROCURE 27 ACRES OF LAND FOR HT ASSESSEE, FAILING WHICH, NO PAYMENT WAS TO BE MADE BY THE ASSESSEE TO VIKRAM ELECTRIC EQUIPMENT P . LTD. 29. THIS CLEARLY SHOWS THAT VIKRAM ELECTRIC EQUIPME NT P. LTD. WAS TRANSACTING ON A PRINCIPLE TO PRINCIPLE BASIS AND I T CANNOT BE SAID THAT THE PAYMENT WAS MADE BY THE ASSESSEE TO VIKRAM ELEC TRIC EQUIPMENT P. LTD. FOR RENDERING OF ANY SERVICE. THE PROVISIO NS OF SECTION 194H OF THE ACT ARE, THEREFORE, NOT AT ALL APPLICABLE. ITA NO.3062, 4059/DEL/2012 8 30. MOREOVER THE AMOUNT PAID TO VIKRAM ELECTRIC EQU IPMENT P. LTD. WAS DULY REFLECTED BY THE ASSESSEE IN THE PURC HASES CLOSING STOCK. NO SALES HAD BEEN MADE DURING THE YEAR UNDER CONSID ERATION. IT HAS NOT BEEN SHOWN TO BE OTHERWISE. IN SUCH A SCENARIO , IN OUR CONSIDERED OPINION, NO DISALLOWANCE IS CALLED FOR. 31. FURTHER STILL, THE CHART AT PAGE 16 OF THE ASSE SSEES PAPER BOOK SHOWS THAT ALMOST 2% OF HT SALE VALUE WAS BEING PAI D BY THE ASSESSEE TO VIKRAM ELECTRIC EQUIPMENT P. LTD. AS CONSIDERATI ON FOR TRANSFERRING VIKRAM ELECTRIC EQUIPMENT P. LTD.S RI GHT. THIS WAS IN TERMS OF THE AFORE-MENTIONED CLAUSE. 32. PERTINENTLY, NO ADDITION HAVING BEEN MADE FOR T HE YEAR BY THE A.O., THE ALTERNATE CONTENTION OF THE ASSESSEE TO T HE EFFECT THAT NO ADDITION CAN BE MADE DURING THE YEAR, STANDS ACCEPT ED BY BOTH THE AUTHORITIES BELOW. 33. THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT IN ANY CASE DO NOT APPLY, THE ASSESSEE HAVING NOT CLAIMED ANY DEDUCTIO N FOR ANY EXPENSES ON ACCOUNT OF PAYMENT TO VIKRAM ELECTRIC E QUIPMENT P. LTD., EITHER IN ITS PROFIT AND LOSS ACCOUNT OR IN T HE COMPUTATION OF TAXABLE INCOME FILED. IT WAS ONLY THAT HT A.O. REC ORDED A LOSS OF RS,19,700/-. THIS OBVIOUSLY, DID NOT INCLUDE ANY A DDITION OF EITHER RS.4.02 CRORES OR RS.1.24 CRORES. 7. WE FIND THAT IN THE PRESENT CASE ALSO, SIMILAR P AYMENTS WERE MADE BY ASSESSEE TO M/S. VIKRAM ELECTRIC EQUIPMENT P. LTD. ON THE SIMILAR TERMS AND CONDITIONS. CLAUSE 3.4 OF THE AGREEMENT WITH THE VI KRAM ELECTRIC IS SIMILAR AS CLAUSE 3.2 OF AGREEMENT REFERRED TO IN BY HONBL E TRIBUNAL IN THE CASE LAW RELIED BY LD. A.R. AND REPRODUCED ABOVE. IN THE PR ESENT CASE ALSO AS IN THE CASE LAW RELIED BY LD. A.R. THE LAND AS PER CONSOLI DATORS FEE HAS BEEN REFLECTED AS STOCK IN TRADE. THEREFORE, RESPECTFUL LY FOLLOWING THE ORDER OF ITA NO.3062, 4059/DEL/2012 9 TRIBUNAL IN THE CASE OF FINIAN ESTATES DEVELOPERS P VT. LTD. (SUPRA), WE ALLOW THE APPEAL FILED BY ASSESSEE. 8. AS REGARDS THE REVENUES APPEAL, THE ONLY GRIEVA NCE OF REVENUE IS THAT LD. CIT(A) HAS ERRED IN NOT QUANTIFYING DISALLOWANC E U/S 40(A)(IA) AS PAYMENT OF RS.3,20,47,734/- MADE BY ASSESSEE RELATE S TO THE SERVICES FOR FINALIZING THE DEAL AND ASSESSEE HAD CLAIMED CONSOL IDATION FEE UNDER THE WRONG HEAD OF PURCHASE. WE FIND THAT THE ISSUE AGI TATED BY REVENUE IS NOT COMING OUT FORM THE ORDER OF LD. CIT(A). LD. CIT(A ) HAS JUST UPHELD THE ADDITION MADE BY A.O. IN VIEW OF ABOVE, APPEAL FIL ED BY REVENUE IS DISMISSED. 9. IN NUTSHELL, APPEAL FILED BY ASSESSEE IS ALLOWED WHEREAS APPEAL FILED BY REVENUE IS DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2015. SD./- SD./- ( G. C. GUPTA) (T.S. KAPOO R) VICE PRESIDENT ACCOUNTANT MEMBER DATE: 25.03.2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.3062, 4059/DEL/2012 10 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 16/3 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16,17,18 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 25/3 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 25/3 SR. PS/PS 7 FILE SENT TO BENCH CLERK 25/3 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER