ITO (TDS) 2(2), MUMBAI V. KANTADEVI CHAUDHARY, MUMBAI

ITA 624/MUM/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0992 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital expenditure
• Section: 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM) . . , . . , ./ I.T .A. NO. 624 / MUM/ 201 4 ( / ASSESSMENT YEAR : 20 11 - 12 ) INCOME TAX OFFICER - (TDS) - 2(2), ROOM NO.70 7 , 7 TH FLOOR, K.G.MITTAL HOSPITAL BUILDING, CHARNI ROAD, MUMBAI - 400002 / VS. SMT.KANTADEVI CHAUDHARY, 701, DEV ASHISH VISHNU BUILDING, S V ROAD, ANDHERI (W), MUMBAI - 400058 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAOPC6078J / APPELLANT BY SHRI SOMANATH S UKKALI / RSPONDENT BY SHRI N K SUREKA / DATE OF HEARING : 2. 7 . 201 5 / DATE OF PRONOUNCEMENT : 2. 7. 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY REVENUE IS DIRECTED AGAINST THE ORDER DATED 18.11 .2013 PASSED BY LD CIT(A) - 14, MUMBAI FOR ASSESSMENT YEAR 201 1 - 12 WHEREIN THE FIRST APPELLATE AUTHORITY HAS DELETED THE DEMAND RAISED BY THE AO U/S 201(1) AND 201(1A) OF THE INCOME TAX ACT, 1961(THE ACT). 2. WE HEARD THE PARTIES AND PERUSED THE RECORD . THE ASSESSEE WAS ALLOTTED A PLOT OF LAND AT KHARGHAR BY CIDCO ON PAYMENT OF LEASE PREMIUM. THE LAND WAS ALLOTTED FOR A LEASE PERIOD OF SIXTY YEARS. IT WAS NOTICED THAT THE ASSESSEE HAS PAID LEASE PREMIUM OF RS.90,37,800 / - . THE ITA NO. 624 / MUM/20 1 4 2 AO TOOK THE VIEW THAT T HE AS S ESSE E SHOULD HAVE DEDUCTED TAX AT SOURCE UNDER SECTION 194I OF THE ACT , AS ACCORDING TO THE AO THE PAYMENT OF LEASE RENT TO CIDCO IS LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S 194I OF THE ACT. SINCE THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE, THE AO TREATED THE ASSESSEE AS AN ASSESSEE IN DEFAULT . ACCORDINGLY HE RAISED A DEMAND OF RS.4 , 82 , 429/ - U/S 201(1) OF THE ACT AND INTEREST OF RS.86 , 837/ - U/S 201(1A) OF THE ACT . THE LD. CIT(A), HOWEVER, DELETED BOTH THE DEMAND S BY FOLLOWING THE DECISION RENDERED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S SHAH GROUP BUILDERS LTD IN ITA NO.4523/MUM/2012(AY - 2008 - 09) ORDER DATED 14.8.2013. 3. IN THE ABOVE SAID CASE, THE TRIBUNAL HAD FOLLOWED THE DECISION RENDERED BY ANOTHER CO - ORDINATE BENCH OF T HE TRIBUNAL IN THE CASE OF WADHWA AND ASSOCIATES REALTORS PVT LTD IN ITA NO.695/MUM/2012(AY - 2008 - 09) ORDER DATED 3.7.2013 . 4 . BEFORE US , THE LD. DR PLACED RELIANCE ON THE ORDER OF AO AND THE LD. AR PLACED RELIANCE ON THE ORDER OF LD. CIT(A). 5 . HAVIN G CONSIDERED THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THERE IS NO INFIRMITY IN THE ORDER OF LD.CIT(A), SINCE HE HAS FOLLOWED THE ORDER PASSED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL ON IDEN TI CAL ISSUE. WE NOTICE FROM THE ORDER PASSED BY THE TRIBU NAL IN THE CASE OF M/S WADHWA & ASSOCIATES REALTORS PVT LTD (SUPRA) THA T THE TRIBUNAL HAS CONSIDERED THE DECISION RENDERED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V/S KHIMLINE PUMPS LTD REPORTED IN 258 ITR 459, WHEREIN THE HONBLE HIGH COURT HA S HELD THAT THE PAYMENT FOR ACQUIRING THE LEASE HOLD L AND IS A CAPITAL EXPENDITURE. ACCORDINGLY, THE TRIBUNAL HAS HELD THAT LEASE RENT PAID BY THE ASSESSEE THEREIN TO ACQUIRE A PLOT OF LAND CANNOT BE TREATED AS RENT FALLING WITHIN THE PURVIEW OF 194I OF THE ACT. IN THE INSTANT ITA NO. 624 / MUM/20 1 4 3 CASE ALSO, THE ASSESSEE HAS PAID THE LEASE PREMIUM TO ACQUIRE A PLOT OF LAND, WHICH WAS A CAPITAL ASSET FOR THE ASSESSEE. HENCE, THE ASSESSEE IS NOT LIABLE TO DEDUCT TAX AT SOURCE U/S 194I OF THE ACT ON THE ABOVE SAID PAYMENT, AS PER THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF WADHWA & ASSOCIATES REALTORS PVT LTD (SUPRA). ACCORDINGLY WE UPHOLD THE ORDER OF LD CIT(A). 6 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 2 ND JULY , 2015. 2 ND JULY , 2015 S D SD ( . . / I.P. BANSAL ) ( . . / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 2 ND JULY, 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, T RUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI