SANJAY SHIKSHA SAMITI, Jaipur V. ACIT, Jaipur

ITA 5/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5314 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 02-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DR DHK
• Assessee Lawyers: SHARVAN KUMAR GUPTA
• Keywords: Maximum Marginal Rate; Capital receipt; Capital expenditure
• Section: 37(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 05/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 SANJAY SHIKSHA SAMITI LAL KOTHI SCHEME,BEHIND NEW ASSEMBLY, TONK ROAD, JAIPUR CUKE VS. THE ADDL.CIT -TDS JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: JPRS 01612 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY :SHRI SHARVAN KUMAR GUPTA ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : MS. ROSHANTA MEENA, JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/05/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /05/2016 VKNS'K@ ORDER PER KUL BHARAT, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. LD. CIT(A)-III, JAIPUR DATED 24-10-2014 PERTAININ G TO ASSESSMENT YEAR 2012-13 WHEREIN THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) GROSSLY ERRED IN HOLDING THAT THE ASSESSEE I S LIABLE TO DEDUCT AT SOURCE (TDS) ON PAYMENT OF DEVELOPMENT CH ARGES, LEASE CHARGES AND OTHER CHARGES PAID TO RIICO. THE ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 2 PAYMENTS ARE IN NATURE OF CAPITAL EXPENDITURE. THE PAYMENTS ARE MADE AGAINST PURCHASE OF LAND, AS SUCH THE PROV ISIONS OF SECTION 194I ARE NOT APPLICABLE TO ASSESSEE. HENCE, THE ENTIRE DEMAND OF RS. 26,54,315/-DESRVES TO BE QUASHED. 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF ADDL. CIT I N IMPOSING TAX LIABILITY8 OF RS. 20,91,094/- U/S 201( 1) AND INTEREST OF RS. 5,63,221/- U/S 201(1A) OF THE I.T. ACT, 1961. AS SUCH TOTAL TAX AND INTEREST OF RS. 26,54,315/- H AS BEEN IMPOSED WRONG, ILLEGAL AND AGAINST THE FACTS ON REC ORD. 3. THAT DURING THE YEAR ASSESSEE HAS MADE TOTAL PAY MENT OF RS. 1,99,10,940/- TO RIICO WHILE LD. ACIT HAS GR OSSLY TAKEN THE SAID FIGURE OF PAYMENT TO RIICO RS. 2,09, 10,940/-. AS SUCH TDS OF RS. 1,00,000/- + INTEREST WAS IMPOSE D WRONG AND THE SAME IS A APPARENT MISTAKE AND ADDITI ON DESERVES TO BE QUASHED. 4. THE ASSESSEE IS AN EDUCATIONAL INSTITUTION AND D ULY APPROVED U/S 10(23C)(VI), THE LAND FROM RIICO WAS PURCHASED TO RUN THE EDUCATIONAL ACTIVITIES AND WHA TEVER PAYMENT MADE TO RIICO IN ANY NAME PERTAINS AGAINST PURCHASE OF LAND, HENCE CREATING OF LIABILITY TO DE DUCT TAX AT SOURCE AGAINST SUCH PAYMENT IS TOTALLY ILLEGAL AND DESERVE TO BE QUASHED. 5. THAT THE ORDER OF THE ACIT IS BAD IN LAW AND DES ERVE TO BE QUASHED. 6. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AM END, WITHDRAW OR ALTER ANY GROUND OF APPEAL BEFORE THE FINALIZATION OF SAID APPEAL. ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 3 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SHRI SHARVAN KUMAR GUPTA, ADVOCATE THROUGH HIS WRITTEN S UBMISSION PLACED CONCISE GROUND OF APPEAL AS UNDER:- GOA 1-5: IN HOLDING THAT ASSESSEE LIABLE TO DEDUC T THE TDS U/S 194ION PAYMENT DEVELOPMENT CHARGES, LEASE CHARGES AND OTHER CHARGES PAID TO RIICO AND CONFIRMING OF DEMAND RAISED U/S 101 AND INTEREST U/ S 201(1A) 2.2 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASS ESSEE BY THE COORDINATE BENCH VIDE ITS ORDER DATED 16-11-2015 IN THE CASE O F M/S. GUPTA FABTEX (P) LTD. VS. DCIT (TDS), JAIPUR IN ITA NO. 647 & 6 48/JP/2013 FOR THE ASSESSMENT YEAR 2011-12 AND 2012-13. 2.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT EMERGES FROM THE RECORD THA T ON SIMILAR ISSUE THE COORDINATE BENCH IN THE CASE OF M/S. GUPTA FABTEX ( P) LTD. VS. DCIT (TDS) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESS EE BY FOLLOWING OBSERVATIONS. 4. NOW THE ASSESSEE IS BEFORE US. 5. THE IMPORTANT QUESTION TO BE DETERMINED FROM THE TERMS OF THE LEASE DEED IS WHETHER PAYMENT OF ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 4 DEVELOPMENT CHARGES PAID WAS FOR ACQUISITION OF LEASEHOLD RIGHTS OR FOR USE OF LAND. 5.1. IF THE PAYMENT MADE WAS FOR USE OF LAND THEN ASSESSEE WAS REQUIRED TO DEDUCT TAX U/S 194 I OF TH E ACT, OTHERWISE NOT. THE RELEVANT TERMS OF THE LEASE DEED ARE EXTRACTED HEREIN BELOW :- IN CONSIDERATION OF THE PREMISES AND OF THE SUM OF RS.1041,41,73,600 (RUPEES ONE THOUSAND FORTY-ONE CR ORE FORTY-ONE LACS SEVENTY-THREE THOUSAND SIX HUNDRED O NLY) PAID BY THE LESSEE TO THE LESSOR AS A PREMIUM AND O F THE COVENANTS AND AGREEMENTS ON THE PART OF THE LESSEE HEREINAFTER CONTAINED, THE LESSOR DOTH HEREBY DEMIS E UNTO THE LESSEE ALL THAT PIECE OF LANDTOGETHER WITH ALL RIGHTS EASEMENTS AND APPURTENANCES THERETO BELONGIN G TO THE LESSOR TO HOLD THE LAND AND PREMISES HEREINB EFORE EXPRESSED TO BE HEREBY DEMISED UNTO THE LESSEE FOR THE TERM OF 80 YEARS 5.2. FURTHER AS PER CLAUSE 2(1) OF THE LEASE DEED , AT PAGE 17 OF PB THE ASSESSEE IS FURTHER PERMITTED TO SELL AND MORTGAGE, ASSIGN, UNDERLET OR SUBLET OR PART WITH T HE POSSESSION OF THE PREMISES OR ANY PART OF THERE OR ANY INTEREST THEREIN THE DEMISED WITH THE PREVIOUS CON SENT OF RIICO. 5.3. THE AFORESAID TERMS OF THE LEASE DEED LEAVES N O MANNER OF DOUBT THAT THE DEVELOPMENT CHARGES OF RS.4.8796830/- ALONG WITH INTEREST WAS PAID FOR ACQUISITION OF RIGHTS IN THE LEASE HOLD PROPERTY RA THER THAN USE OF LAND. THEREFORE THE PROVISIONS OF SECTION 19 4 I OF THE ACT ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. THE PURPORT OF SECTION 194 I OF THE ACT IS NOT TO BRING IN ITS PURVIEW PAYMENTS OF ANY OR EVERY KIND. ONLY THOSE PAYMENTS WHICH ARE IN THE NATURE OF USE OF LAND C OME WITHIN THE AMBIT OF SECTION 194 I OF THE ACT. 5.4. THE WORD USE IS THEREFORE OF PRIME IMPORTANC E FOR TRANSACTIONS WHERE THE CONSIDERATION PAID FOR T HE PROPERTY WOULD BE TERMED AS RENT. THE TERM USE ACCORDING TO US HAS TO BE INTERPRETED KEEPING IN MI ND THE ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 5 RELATIONSHIP BETWEEN THE LANDLORD AND THE TENANT. T HE SAME CANNOT BE EXTENDED TO BRING WITHIN ITS PURVIEW EXPLOITATION OF ANY KIND WITH REFERENCE TO THE PROP ERTY BY CHANGING ITS IDENTITY FOR ITS OWN BENEFIT AND THERE AFTER SELLING IT FOR PROFIT. IF THAT BE SO AND THE WORD USE IS GIVEN AN EXTENDED MEANING, THERE WOULD BE NO DIFFERENCE BETWEEN A SALE TRANSACTION AND A TRANSACTION BETWEE N THE LANDLORD AND THE TENANT. THIS WOULD RENDER THE INTE NTION OF THE LEGISLATURE IN IMPORTING THE WORD USE IN SEC TION 194 I OF THE ACT OTIOSE. LANDLORD-TENANT RELATIONSHIP DOE S NOT CONTEMPLATE SUCH RIGHT BEING GIVEN TO THE TENANT. H OWEVER, THERE MAY BE TRANSACTIONS OF LEASE THAT MAY BE IDEN TICAL TO THE TRANSACTIONS BETWEEN A LANDLORD AND TENANT AND THAT IS WHY THE DEFINITION OF THE RENT INCLUDES LEASE, SUB- LEASE ETC. 5.5. IT IS FURTHER RELEVANT TO MENTION THAT THE AMO UNT PAID BY THE ASSESSEE FOR DEVELOPMENT CHARGES HAS NO CONNECTION WITH THE MARKET RENT OF THE PROPERTY LEA SED TO THE ASSESSEE. FURTHERMORE THE TERM OF LEASE DEED IS FOR A CONSIDERABLE PERIOD OF 99 YEARS WHICH FURTHER SUPPO RTS THE CASE OF THE ASSESSEE THAT THE PAYMENT MADE WAS FOR THE ACQUISITION OF RIGHTS IN THE LAND ALONG WITH THE RI GHT OF POSSESSION, RIGHT OF EXPLOITATION OF PROPERTY, ITS LONG TERM ENJOYMENT, TO MORTGAGE THE PROPERTY, TO SELL THE PR OPERTY ETC. ALSO THE ENTIRE DEVELOPMENT CHARGES OF RS.4,87,96,830/- ALONG WITH INTEREST HAS BEEN PAID IN TERMS OF THE LEASE DEED. 5.6. THE DISTINCTION BETWEEN THE LEASE PREMIUM AND THE RENT HAS BEEN A SUBJECT MATTER OF DISCUSSION IN VARIOUS JUDICIAL PRONOUNCEMENTS. THE HON'BLE SUPREME COURT IN THE CASE OR CIT VS PANBARI TEA COMPANY LTD. 57 ITR 422 HAS BROUGHT OUT THE AFORESAID DISTINCTION AND THE R ELEVANT PART IS REPRODUCED AS UNDER :- UNDER S. 105, OF THE TRANSFER OF PROPERTY ACT, A LEASE OF IMMOVABLE PROPERTY IS A TRANSFER OF A RIGHT TO ENJO Y THE PROPERTY MADE FOR A CERTAIN TIME, EXPRESS OR IMPLIED, OR IN PERPETUITY, IN CONSIDERATION OF A PR ICE PAID OR PROMISED, OR OF MONEY, A SHARE OF CROPS, SERVICE OR ANY OTHER THING OF VALUE, TO BE RENDERED PERIODICAL LY OR ON ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 6 SPECIFIED OCCASIONS TO THE TRANSFEROR BY THE TRANSF EREE, WHO ACCEPTS THE TRANSFER ON SUCH TERMS. THE TRANSFEROR IS CALLED THE LESSOR, THE TRANSFEREE IS CALLED THE LESSEE, THE PRICE IS CALLED THE PREMIUM, AND TH E MONEY, SHARE, SERVICE OR OTHER THING TO BE SO RENDE RED IS CALLED THE RENT. THE SECTION, THEREFORE, BRINGS OUT THE DISTINCTION BETWEEN A PRICE PAID FOR A TRANSFER OF A RIGHT TO ENJOY THE PROPERTY AND THE RENT TO BE PAID PERIO DICALLY TO THE LESSOR. WHEN THE INTEREST OF THE LESSOR IS P ARTED WITH FOR A PRICE, THE PRICE PAID IS PREMIUM OR SALA MI. BUT THE PERIODICAL PAYMENTS MADE FOR THE CONTINUOUS ENJOYMENT OF THE BENEFITS UNDER THE LEASE ARE IN TH E NATURE OF RENT. THE FORMER IS A CAPITAL INCOME AND THE LATTER A REVENUE RECEIPT. THERE MAY BE CIRCUMSTANCE S WHERE THE PARTIES MAY CAMOUFLAGE THE REAL NATURE OF THE TRANSACTION BY USING CLEVER PHRASEOLOGY. IN SOME CA SES, THE SO-CALLED PREMIUM IS IN FACT ADVANCE RENT AND I N OTHERS RENT IS DEFERRED PRICE. IT IS NOT THE FORM B UT THE SUBSTANCE OF THE TRANSACTION THAT MATTERS. THE NOMENCLATURE USED MAY NOT BE DECISIVE OR CONCLUSIVE BUT IT HELPS THE COURT, HAVING REGARD TO THE OTHER CIRCUMSTANCES, TO ASCERTAIN THE INTENTION OF THE PA RTIES. 5.7. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. PURNENDU MULLICK 116 ITR 0591 OBSERVED THAT IN CASE WHERE THE LEASES IS FOR A LONG PERIOD, THE LUMP SUM PAYMENT CANNOT BE TREATED AS RENT. THE RELEVANT POR TION OF THE JUDGMENT IS EXTRACTED HEREIN BELOW :- 8. ON FURTHER APPEAL, THE SUPREME COURT HELD THAT T HE TRIBUNAL AND THE HIGH COURT WERE BOTH IN 'ERROR IN TREATING THE SAID SUM OF RS. 55,200 AS ADVANCE PAYM ENT OFRENT FOR THE FOLLOWING REASONS: (A) PRIMA FACIE, PREMIUM OR SALAMI WAS NOT INCOME A ND IT WOULD BE FOR THE IT AUTHORITIES TO SHOW THAT THE FA CTS EXISTED WHICH WOULD MAKE IT A REVENUE RECEIPT. ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 7 (B) THE SUB-LEASE DID NOT CONTAIN ANY CONDITION OR STIPULATION FROM WHICH IT COULD BE INFERRED THAT TH E AFORESAID AMOUNT WAS PAID BY WAY OF ADVANCE RENT. (C) IT WAS CLEARLY STATED IN THE LEASE THAT THE MON EY WAS BEING PAID FOR COMPLETION OF THE BUILDING REQUIRED FOR RUNNING AS A CINEMA HOUSE. (D) THE PAYMENT OF THE RENT UNDER THE LEASE WAS TO COMMENCE NOT FROM THE DATE OF THE SUBLEASE WHICH WA S FEBRUARY 23,1946, BUT W.E.F. JUNE 1, 1946. (E) THE SUB-LESSEES WOULD ENTER IN TO POSSESSION AF TER THE CINEMA HOUSE WAS SAID TO BE COMPLETED. (F) THE PAYMENT OF THE LUMP SUM WAS OF A NON-RECURR ING NATURE. 9. ON THE BASIS OF THE AFORESAID REASONS .THE SUPREME COURT HELD THAT THE SAID SUM OF RS. 55,200 WAS A CAPITAL RECEIPT AND NOT INCOME. 10. IT APPEARS TO US THAT THE FACTS OF THE PRESENT CASE ARE VERY SIMILAR TO THE FACTS WHICH WERE CONSIDERED BY THE SUPREME COURT IN THE ABOVE DECISION AND THAT THE PR ESENT REFERENCE IS COVERED BY THE SAID DECISION. 11. IN THE INSTANT CASE THE LEASE IS FOR A LONG PERIOD WITH PROVISION FOR ESCALATION OF RENT. THE .RENT FIXED I S HIGHER THAN THE PREVIOUS RENT. THE LEASE PROVIDES FOR DEMO LITION OF THE OLD STRUCTURES AND CONSTRUCTION OF A NEW BUI LDING AFTER SUBSTANTIAL EXPENDITURE. THE LUMP SUM PAID IS DESCRIBED AS SALAMI OR PREMIUM AND NOT RENT. THERE IS NO CLAUSE FOR REPAYMENT OF THE LUMP SUM PAID OR ADJUST MENT OF THE SAID LUMP SUM AGAINST RENT. THERE IS THING O N RECORD TO SHOW THAT THE PREMIUM OR SALAMI PAID HAD ANY CHARACTERISTIC OF RENT. 5.8. THE HONBLE DELHI HIGH COURT IN THE CASE OF BH ARAT STEEL TUBES LTD. VS CIT REPORTED IN (2001) 252 ITR 0622 HAS BROUGHT OUT THE DISTINCTION BETWEEN THE LEASE PREMIUM AND THE RENT BY LAYING DOWN BROAD PRINCIPLE S RELATING TO THE TERM LEASE PREMIUM/SALAMI. THE SAID ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 8 PRINCIPLE ARE APPLICABLE IN THE CASE OF THE ASSESSE E IN AS MUCH AS THE LEASE PREMIUM HAS BEEN PAID BEFORE THE EXECUTION OF THE LEASE WHICH IS FOR A TERM OF A LON G PERIOD OF 80 YEARS AND THERE IS NO PROVISION TO TREAT THE SAME AS ADVANCE RENT IN THE SUCCEEDING YEARS. THE RELEVANT PORTION OF THE JUDGMENT IS EXTRACTED HEREIN BELOW : 4. AS WAS OBSERVED BY APEX COURT IN BOARD OF AGRL. IT VS. SINDHURANI CHAUDHARANI (1957) 32 ITR 169 (SC) : TC 31R.278 AND CHINTAMANI SARAN NATHSAH DEO VS. CIT (1961) 41 ITR 506 (SC) : TC 38R.L046. INDICIA OF SALAMI ARE : (I) ITS SIMPLE NON-RECURRING CHARACTER, AND ( II) PAYMENT PRIOR TO CREATION OF TENANCY. IT IS THE CONSIDERATION PAID BY THE TENANT FOR BEING LET INTO POSSESSION AND CAN BE NEITHER RENT NOR REVENUE BUT IT IS CAPITAL RECEIPT IN THE HANDS OF THE LANDLORD. IN TH E FORMER CASE IT WAS OBSERVED THAT SALAMI IS A PAYMENT BY A TENANT AS A PRICE FOR PARTING BY THE LANDLORD WITH THE RIGHTS UNDER THE LEASE OF THE HOLIDAY AS A CONSIDER ATION FOR WHAT THE LANDLORD TRANSFERS TO THE TENANT. THE BROAD PRINCIPLE RELATING TO TERM SALAMI ARE AS FOLLOWS: (1) PRIMA FACIE SALAMI OR PREMIUM IS NOT INCOME, IT IS FOR THE TAXING AUTHORITIES TO PROVE THAT THE FACTS EXIS T WHICH WOULD MAKE THE SAME AS INCOME, IF THEY SEEK TO TAX IT. (2) WHERE THE PREMIUM REPRESENTS PAYMENT OF RENT IN ADVANCE IT IS INCOME. BUT IF IT REPRESENTS THE WHOL E OR PART OF THE PRICE OF THE LAND OR THE SALE PRICE OF THE LEASEHOLD INTEREST IS NOT INCOME BUT CAPITAL. (3) SALAMI TO BE INCOME SHOULD BE A PERIODICAL MONE TARY RETURN COMING IN WHICH SOME SORT OF REGULARITY OR EXPECTED REGULARITY FROM DEFINITE SOURCES. (4) SALAMI OR PREMIUM PAID AT THE BEGINNING OF A MI NING LEASE FOR A LONG PERIOD ORDINARILY REPRESENTS THE P URCHASE PRICE OF AN OUT ANTI OUT SALE OF THE PROPERTY AND T HE SUM RECEIVED IS CAPITAL AND NOT INCOME BUT RENT OR ROYA LTY PAID PERIODICALLY IS INCOME. THE PRINCIPLE IS THE SAME W HETHER THE PREMIUM IS FOR A SIMPLE LEASE OF LAND OR FOR A LEASE OF MINERAL RIGHTS. BUT ROYALTY PAYABLE UNDER THE MININ G LEASE STANDS ON A DIFFERENT FOOTING FROM PREMIUM OR SALAM I. ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 9 (5) WHEN A PREMIUM IS RECEIVED MERELY AS AN INCIDEN T IN THE POSSESSION OF PROPERTY (EVEN IF LEASEHOLD) AND THERE IS NO FINDING THAT THE LETTING OUT OF THE PROPERTY IS THE BUSINESS OF THE ASSESSEE, THE PREMIUM RECEIPT IS CA PITAL. (6) SALAMI OR PREMIUM PAID IN ADVANCE OF RENT ONCE FOR ALL AT THE OUTSET THE PERIOD OF TENANCY BEING UNCER TAIN AND THE CHANGES OF THE RESETTLEMENT OF THE SAME LAN D TO SOME OTHER TENANT BEING REMOTE, IS CAPITAL. (7) PREMIUM (SALAMI) IS A SINGLE PAYMENT MADE FOR T HE ACQUISITION BY THE LESSEE OF THE RIGHT TO ENJOY THE BENEFITS GRANTED TO HIM BY THE LEASE. MONEY PAID TO PURCHASE THE SAID GENERAL RIGHT IS A PAYMENT ON CAPITAL ACCOUNT. (8) SALAMI IS THE AMOUNT OF MONEY WHICH A LANDLORD INSISTS ON RECEIVING AS CONDITION PRECEDENT FOR PAR TING WITH THE LAND IN FAVOUR OF THE LESSEE AND THAT IT W AS RECEIVED BY THE LANDLORD NOT BECAUSE OF THE USE OF THE LAND, BUT BEFORE THE LAND WAS PUT INTO USE BY THE ASSESSEE. (9) THE QUESTION OF SALAMI SHOULD NOT BE DECIDED ON THE LENGTH OF THE PERIOD OF THE LEASE BUT ON THE NATURE OF THE RIGHT CONVEYED. THE CHARACTERISTICS OF THE PAYMENT SHOULD BE DECIDED WITHOUT REFERENCE TO THE NATURE OF THE L EASE INCLUDING THE WASTING NATURE OF THE ASSETS UNDER TH E LEASE. THESE BROAD PRINCIPLES WERE SUMMARIZED BY CALCUTTA HIGH COURT IN PROMODE CH. ROY CHOWDHURY VS. CIT (1962) 4 6 ITR 1064 (CAL) : TC 38R.1092. QUESTION WHETHER A PARTICULAR RECEIPT LIKE SALAMI CAN BE REGARDED AS R EVENUE OR CAPITAL CANNOT BE DECIDED IN THE ABSTRACT AND EA CH CASE HAS TO BE DECIDED ON ITS FACTS. 5. RENT IS ALLOWABLE AS DEDUCTION UNDER S. 30 OF THE A CT. WHAT IS ALLOWABLE IS THE RENT PAID OR PAYABLE FOR T HE PERIOD DURING WHICH THE PREMISES ARE USED FOR THE PURPOSES OF BUSINESS. SEC. 105 OF THE TRANSFER OF PROPERTY ACT, 1882 (IN SHORT, T.P. ACT) MAKES A DIS TINCTION BETWEEN RENT AND PREMIUM PAYABLE UNDER A LEASE WHEN ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 10 THE INTEREST OF THE LESSOR IS PARTED WITH FOR A PRI CE, THE PRICE PAID IS PREMIUM OR SALAMI. BUT THE PERIODICAL PAYMENTS MADE FOR THE CONTINUOUS ENJOYMENT OF THE BENEFITS UNDER THE LEASE ARE IN THE NATURE OF RENT. THE FORMER IS CAPITAL AND THE LATTER IS A REVENUE IN NA TURE. 5.9. AGAIN IN THE CASE OF ITO VS. WADHWA & ASSOCIAT ES REALTORS PVT. LTD. (2014) 146 ITD 0694 (MUM) SIMILA R ISSUE AROSE BEFORE ITAT MUMBAI BENCH WHERE IT WAS H ELD AS UNDER : 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERU SED THE ORDER OF THE LOWER AUTHORITIES AND THE MATERIAL EVIDENCE BROUGHT ON RECORD IN THE FORM OF PAPER BOO K AND THE JUDICIAL DECISIONS RELIED UPON BY THE RIVAL PARTIES. THE ENTIRE GRIEVANCE REVOLVES AROUND THE PREMIUM PA ID BY THE ASSESSEE TO M/S. MMRDA LTD. FOR THE LEASEHOL D RIGHTS ACQUIRED BY THE ASSESSEE THROUGH THE LEASE D EED DT. 22ND NOVEMBER, 2004. IT IS THE SAY OF THE REVEN UE THAT THIS LEASE PREMIUM WAS LIABLE FOR DEDUCTION OF TAX AT SOURCE FAILING WHICH THE ASSESSEE IS TO BE TREATED ASSESSEE IN DEFAULT. IT IS THE SAY OF THE ASSESSEE THAT SUCH LEASE PREMIUM IS IN THE NATURE OF CAPITAL EXPENDITURE AND THEREFORE THERE IS NO QUESTION OF DEDUCTION OF TAX AT SOURCE. FURTHER, THE SAID LEASE PREMIUM DOES NOT COME WITHIN THE PURVIEW OF THE DEFINITION OF RENT AS PROVIDED U/S,194- 1 OF THE AC T. 10. WE HAVE CAREFULLY PERUSED THE LEASE DEED AS EXHIBITED FROM PAGE-L TO 42 OF THE PAPER BOOK. A CA REFUL READING OF THE SAID LEASE DEED TRANSPIRES THAT THE PREMIUM IS NOT PAID UNDER A LEASE BUT IS PAID AS A PRICE FOR OBTAINING THE LEASE, HENCE IT PRECEDES THE GRAN T OF LEASE. THEREFORE, BY ANY STRETCH OF IMAGINATION, IT CANNOT BE EQUATED WITH THE RENT WHICH IS PAID PERIODICALLY . A PERUSAL OF THE RECORDS FURTHER SHOW THAT THE PAYMEN T TO MMRD IS ALSO FOR ADDITIONAL BUILT UP ARE AND ALSO F OR GRANTING FREE OF FSI AREA, SUCH PAYMENT CANNOT BE EQUATED TO RENT. IT IS ALSO SEEN THAT THE MMRD IN E XERCISE OF POWER U/S. 43 R.W. SEC. 37(1) OF THE MAHARASHTRA TOWN PLANNING ACT 1966, MRTP ACT AND OTHER POWERS ENABLI NG THE SAME HAS APPROVED THE PROPOSAL TO MODIFY REGULA TION 4A(II) AND THEREBY INCREASED THE FSI OF THE ENTIRE 'G' ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 11 BLOCK OF BKC. THE DEVELOPMENT CONTROL REGULATIONS F OR BKC SPECIFY THE PERMISSIBLE FSI. 5.10. IN THE CASE OF ITO (TDS) VS NAVI MUMBAI SEZ PV T. LTD. 147 ITD 0261 (MUM) SIMILAR ISSUE IS HELD IN FA VOUR OF THE ASSESEE IN SIMILAR CONSIDERATION AND THE REL EVANT DECISION IN PARAS 19 AND 20 IS REPRODUCED HEREIN BE LOW :- IN THE CASE BEFORE US, THE ASSESSEE HAS ENTERED IN TO LEASE AGREEMENTS WITH CIDCO FOR ACQUISITION OF LEAS EHOLD RIGHTS IN THE LAND TO DEVELOP AND OPERATE THE SPECI AL ECONOMIC ZONE AT NAVI MUMBAI. ASSESSEE HAS PAID PREMIUM FOR DEMISED LEASE LAND. THE-QUESTION BEFORE US IS AS TO WHETHER THE SAID LEASE PREMIUM PAID BY THE ASSESSEE TO CIDCO TO ACQUIRE LEASEHOLD RIGHTS FOR 6 0 YEARS UNDER THE LEASE DEED(S) IS LIABLE FOR DEDUCTI ON OF TAX AT SOURCE BEING RENT WITHIN THE MEANING OF SECT ION 194-1 OF THE ACT OR NOT. AO HAS STATED THAT THE SAI D PAYMENT MADE BY ASSESSEE UNDER LEASE AGREEMENTS QUALIFIES FOR RENT FOR THE PURPOSE OF SECTION 194-1 OF THE ACT AS IT PARTAKES ALL THE CHARACTERISTICS OF RENT AND WHEREAS THE ASSESSEE HAS CONTENDED THAT THE ASSESSE E HAS OBTAINED LEASEHOLD RIGHTS IN THE SAID LEASEHOLD LANDS ON PAYMENT OF LEASE PREMIUM AND THE SAID LEASE PREMIUM IS NOT PAID UNDER A LEASE. HENCE, IT IS A C APITAL EXPENDITURE AND NOT AN ADVANCE RENT. WE OBSERVE THA T THE MAIN THRUST OF THE AO TO HOLD THE PREMIUM PAID BY ASSESSEE TO HOLD IT AS RENT IS ON THE DEFINITION OF RENT UNDER SECTION 194-1 OF THE ACT THAT IT CREATES A LE GAL FICTION AND THE LEASE DEED(S) ENTERED INTO CONTAIN VARIOUS RESTRICTIVE COVENANTS. THAT THE SAID PAYMENTS IN SUBSTANCE ARE FOR CONSIDERATION FOR USE OF LAND UND ER THE LEASE DEED(S), HENCE PROVISIONS OF SECTION 194-1 OF THE ACT IS ATTRACTED. 20. ON THE OTHER HAND, WE OBSERVE THAT GOVERNMENT O F MAHARASHTRA APPOINTED CIDCO AS THE NODAL AGENCY FOR SETTING UP OF SPECIAL ECONOMIC ZONE AT NAVI MUMBAI 'NMSEZ'. THAT THE ASSESSEE HAS BEEN JOINTLY PROMOTED AS A SPECIAL PURPOSE VEHICLE (SPV) BY CIDCO AND DRONAG IRI INFRASTRUCTURE PVT LIMITED (DIPL) TO DEVELOP AND OP ERATE THE SPECIAL ECONOMIC ZONE AT NAVI MUMBAI. PURSUANT ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 12 THERETO ASSESSEE AND CID CO ENTERED INTO DEVELOPMEN T AGREEMENT AND THE ASSESSEE IS REQUIRED TO MAKE PAYMENT OF LEASE PREMIUM IN RESPECT OF THE LAND WHI CH WAS BEING ACQUIRED BY CIDCO AND BEING ALLOTTED TO ASSESSEE FROM TIME TO TIME. AS PER DEVELOPMENT AGREEMENT, THE ASSESSEE IS TO DEVELOP AND MARKET 'NMSEZ'. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS ACQUIRED LEASEHOLD RIGHT IN THE LAND F OR THE PURPOSE OF DEVELOPING, DESIGNING, PLANNING, FINANCI NG, MARKETING, DEVELOPING NECESSARY INFRASTRUCTURE, PRO VIDING NECESSARY SERVICES, OPERATING AND MAINTAINING INFRASTRUCTURE ADMINISTRATING AND MANAGING 'SEZ'. BY VIRTUE OF SAID LEASE DEED(S), THE ASSESSEE HAS ACQU IRED THE RIGHTS TO DETERMINE, LEVY, COLLECT, RETAIN, UTI LIZE USER CHARGES FEE FOR PROVISION OF SERVICES AND FOR TARIF FS IN ACCORDANCE WITH TERMS AND CONDITIONS PROVIDED IN TH E DEVELOPMENT AGREEMENT AND THE LEASE DEED (S) ENTERE D INTO. THEREFORE, WE AGREE WITH ID. CIT(A) THAT LEAS E DEED(S) AND THE DEVELOPMENT AGREEMENT HAVE ASSIGNED TO THE ASSESSEE LEASEHOLD RIGHT WHICH INCLUDES BUND LE OF RIGHTS. THE ASSESSEE HAS PAID THE PREMIUM FOR LEASE DEED(S) FOR THE DEMISED LAND TO ACQUIRE ENTIRE RIGH TS OF THE LAND FOR A PERIOD OF 60 YEARS. THEREFORE, WE AR E OF THE CONSIDERED VIEW THAT THE SAID PAYMENT OF LEASE PREMIUM IS A PAYMENT FOR ACQUISITION OF LEASEHOLD L AND AND NOT MERELY FOR USE OF LAND. THE ASSESSEE HAS MA DE PAYMENT FOR ENTERING INTO LEASE AGREEMENTS TO ACQUI RE LEASE HOLD RIGHTS IN THE LAND FOR A PERIOD OF 60 YE ARS AND NOT UNDER A LEASE. SIMILAR ISSUE CAME UP BEFORE THE SPECIAL BENCH ITAT MUMBAI IN THE CASE OF MUKUND LTD. (SUPRA). THE ASSESSEE ACQUIRED A LAND ON LEASE FOR A PERIOD OF 99 YEARS FROM THE MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION (MIDC) AND PAID RS.2.04 CRO RES AS PREMIUM OF LEASEHOLD LAND AND APART FROM FIXING ANNUAL RENT AT RS.1 PER ANNUM. THE ASSESSEE CLAIMED THAT THE SAID PREMIUM ON LEASEHOLD LAND IS A REVENU E EXPENDITURE, WHICH WAS DISALLOWED BY THE AA HOLDING IT AS A CAPITAL IN NATURE. LD. CIT(A) HELD THAT THE PREMI UM CANNOT BE TREATED AS CAPITAL EXPENDITURE AS THE ASS ESSEE DID NOT ACQUIRE OWNERSHIP OF LAND. IT WAS HELD THAT IT WAS AN EXPENDITURE RELATABLE TO 99 YEARS AND SHOULD BE ALLOWED ON PROPORTIONATE BASIS. HOWEVER, ON FURTHER APPEAL TO THE TRIBUNAL, THE TRIBUNAL HELD THAT THE BENEFIT ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 13 CONFERRED ON THE ASSESSEE ON LEASE HOLD RIGHTS IN 9 9 YEARS AGAINST LUMP SUM PAYMENT OF THE PREMIUM WAS O F AN ENDURING NATURE. IT WAS HELD THAT THERE WAS NO MATERIAL ON RECORD TO SUGGEST THAT THE SUM OF RS.2. 04 CRORES HAD BEEN PAID BY WAY OF ADVANCE RENT NOR THE RE WAS ANY PROVISION FOR ITS ADJUSTMENT TOWARDS RENT O R FOR ITS RE-PAYMENT TO THE ASSESSEE. IT WAS HELD THAT TH E CONSIDERATION PAID BY THE ASSESSEE WAS CAPITAL EXPENDITURE AND ACCORDINGLY THE ISSUE WAS DECIDED AGAINST THE ASSESSEE. 5.11. IN THE AFORESAID DECISION THE ITAT HAS DISTINGUISHED THE DECISION IN THE CASE OF FOXCONN I NDIA DEVELOPERS PVT. LTD. VS ITO 492/2010 RENDERED BY IT AT, CHENNAI BENCH. THE DISTINCTION IS BROUGHT OUT IN TH E DECISION OF ITAT MUMBAI BENCH IN THE CASE OF ITO VS NAVI MUMBAI SEZ PVT. LTD (SUPRA) IN THE FOLLOWING PA RAS OF THE DECISIONS AT PARA 22 WHICH IS REPRODUCED HER EIN BELOW :- 22. DURING THE COURSE OF HEARING ID. DR SUBMITTED THAT THE ABOVE DECISIONS OF ITAT, DELHI BENCH AND ITAT MUMBAI BENCH (SUPRA) ARE DISTINGUISHABLE. WHEREAS THE DECISION OF ITAT,CHENNAI BENCH IN THE CASE OF FOXCO NN INDIA DEVELOPERS PVT.LTD (SUPRA) SHOULD BE CONSIDER ED AND BE FOLLOWED. WE OBSERVE THAT THE SAID DECISION OF ITAT HAS BEEN CONSIDEREDBYTHEID.CIT(A)IN PARA 5.40 OF THE IMPUGNED ORDER. ON PERUSAL OF THE SAID ORDER OF ITAT, CHENNAI BENCH, WE OBSERVE THAT IN THE SAID OR DER OF CHENNAI BENCH ONLY THE PROVISIONS OF SECTION 194 -1 HAS BEEN CONSIDERED IN RESPECT OF UPFRONT CHARGES PAID IN RESPECT OF LEASEOFLANDFORAPERIODOF99YEARS. ON PERUS AL OF THE FACTS OF THE CASE, IT IS OBSERVED THAT THE ASSE SSEE HAD ALREADY ENTERED INTO LEASE AGREEMENTS AND THE SAID PAYMENT WAS MADE TO SIPCOT LTD UNDER LEASE AGREEMENT. THEREFORE, THE SAID PAYMENT IS FOR LEASE OR USE OF LAND AND ACCORDINGLY THE PAYMENT COULD NOT B E SAID TO HAVE BEEN MADE FOR ACQUIRING LEASEHOLD LAND AND HENCE, IT IS OBSERVED THAT THE CHENNAI BENCH HAS HE LD THAT THE PAYMENT BY THE ASSESSEE COMPANY TO CIDCO I S RENT U/S194-1 OF THE ACT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ABOVE DECISION OF ITAT CHE NNAI BENCH (SUPRA) RELIED UPON BY ID. DR IS NOT APPLICAB LE TO ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 14 THE CASE BEFORE US. ON THE OTHER HAND,THE SPECIAL B ENCH DECISION OF ITAT, MUMBAI IN THE CASE OF MUKUND LTD. (SUPRA)SQUARELY APPLY WHEREIN IT HAS BEEN HELD THAT THE PREMIUM PAID FOR ACQUIRING LEASEHOLD RIGHT IN LAND IS A CAPITAL EXPENDITURE. THE SPECIAL BENCH DECIDED THE ISSUE AFTERCONSIDERING THE VARIOUS JUDGMENTS OF THE HON'B LE JURISDICTIONAL HIGH COURT, HON'BLE APEX COURT, VARI OUS DECISIONS OF THE TRIBUNAL AS DISCUSSED HEREINABOVE WHICH HAVE DISTINGUISHED BETWEEN THE LEASE PREMIUM AND RE NT UNDER THE INCOME TAX ACT. THE HON'BLE APEX COURT HA S HELD IN THE CASE OF ENTERPRISING ENTERPRISES V/S DCIT (2007) 293 ITR 437 (SC) THAT THE ASSESSEE WHICH HAD TAKEN A QUARRY ON LEASE, THE LEASE RENT PAID WAS CA PITAL EXPENDITURE AND THE HON'BLE HIGH COURT ALSO AFFIRME D THE DECISION OF THE TRIBUNAL. THE HON'BLE APEX COURT WH ILE CONFIRMING THE DECISION OF THE HON'BLE HIGH COURT H ELD THAT PREMIUM FOR LEASE OR ANY LUMP SUM PAYMENT FOR OBTAINING A LEASE FOR A LONG PERIOD IS PAYMENT FOR ENDURING ADVANTAGE, SO THAT IT IS A CAPITAL EXPENDI TURE WHICH IS NOT DEDUCTIBLE. EVEN IF THE AFORESAID DECISION OF ITAT CHENNAI BENCH IN THE CASE OF FOXCONN INDIA DEVELOPERS PVT. LTD. (SUP RA) IS TAKEN TO BE AGAINST THE ASSESSEE ON THE ISSUE UNDER CONSIDERATION , WE ARE BOUND TO FOLLOW THE VIEW WHI CH IS IN FAVOUR OF THE ASSESSEE AS PER THE RATIO LAID DOW N IN CIT VS VEGETABLE PRODUCTS 88 ITR 192 (SC). BESIDES THE ABOVE LEASE DOCUMENT HAS USED THE 'DEVELOPMENT CHARGES' AND 'ECONOMIC RENT' TO BE PAYABLE BY THE ASSESSEE. AS THE DOCUMENT HAS USED T WO DIFFERENT PHRASES TO CONNOTE DIFFERENT OBLIGATION T HEREFORE IN OUR VIEW DEVELOPMENT CHARGES CAN'NOT BE READ AS RENT WITHIN THE PURVIEW OF THE SECTION 194 I. FURTHER LE ASE DOCUMENT HAS PROVIDED THE CONSEQUENCES OF NON- PAYMENT OF THE DEVELOPMENT CHARGES BY THE ASSESSEE, IF THE ASSESSEE FAILED TO PAY THE DEVELOPMENT CHARGES, AS MENTIONED IN THE AGREEMENT, THE POSSESSION WAS LIAB LE TO BE TAKEN OVER BY THE RIICO, THEREFORE THE DEVELOPME NT CHARGES CAN NOT BE CONSIDERED AS RENT . 5.12. ACCORDINGLY GROUND NO.1 IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ITA NO. 05/JP/2015 SANJAY SHIKSHA SAMITI VS ADDL.CIT , TDS, JAIPUR . 15 2.5 IN VIEW OF THE SIMILAR FACTS AND CIRCUMSTANCES OF THE ASSESSEE'S CASE AND RESPECTFULLY FOLLOWING THE DECISION OF COO RDINATE BENCH IN THE CASE OF M/S. GUPTA FABTEX (P) LTD. (SUPRA), THE APP EAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 /05/2 016. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/ 5/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. SANJAY SHIKSHA SAMITI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ADDL. CIT (TDS ), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.5/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR