TMI Blog2014 (4) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... limit to the scope of the said word, however, is implicit therein, and would not include transfer of a capital asset, i.e., where so, in terms of the defining provision of section 2(14). The assessment order states the annual rent at Rs.60,000 - Though there was no evidence to support the same on record, even so, the same would not, operate to disturb the finding of the same as representing only a nominal rent in view of the substantial rights/interest having been transferred - the arrangement is subject to the assessee-licensee constructing a building complying with the relevant and applicable guidelines within the prescribed time period (of four years), also providing infrastructure facilities as well as parking facilities qua the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exigibility to deduction of tax at source u/s.194-I of the Act on the sum of Rs.219.71 lacs, described as lease premium, paid by the assessee, a developer, to City Industrial Development Corporation (CIDCO) under a lease agreement dated 03.12.2008 (PB pgs. 42-59) and, consequently, the validity or otherwise in law of the deletion of the demand raised on the assessee u/ss. 201(1) and 201(1A) by the Assessing Officer (A.O.) in appeal by the ld. CIT(A) vide the impugned order. 2.2 Before us, the matter was argued as covered by the various orders by the tribunal, the assessee's Paper-Book-2 (APB-2) dated 30.08.2013 containing a compilation of five orders, including (as per the index) one by the hon'ble high court, i.e., in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with 'premium', clarified per section 105 of the Transfer of Property Act, 1882. Both the parties relied on case law by the higher courts of law, i.e., in the proceedings at the assessment and the first appellate stage. 3.2 The question before us in the matter is if the issue at hand can be considered as covered by the various decisions adduced before us. The decision in the case of Muhammad Hussain (supra) is with regard to the power of the appellate authority to condone the delay if it is satisfied about the sufficiency of the cause shown for the delay. We are completely unable to correlate the said decision with the facts of the case or issue before us for adjudication. Further, the decision at pgs. 148-153 of APB-2 is by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Panbari Tea Co. Ltd. [1965] 57 ITR 422 (SC); 4) Maharaja Chintamani Saran Nath Sah Deo vs. CIT [1961] 41 ITR 506 (SC); 5) Member for the Board of Agricultural Income Tax vs. Sindhurani Chaudhurani Ors. [1957] 32 ITR 169 (SC); and 6) Raja Bahadur Kamakshya Narain Sing of Ramgarh vs. CIT [1943] 11 ITR 513 (PC). The decisions advanced by the Revenue, as in the case of CIT vs. Reebok India Co. [2007] 291 ITR 455 (Del); United Airlines vs. CIT [2006] 287 ITR 281 (Del); Krishna Oberoi vs. Union of India [2002] 257 ITR 105 (AP); CIT vs. H.M.T. Ltd. [1993] 203 ITR 820 (Kar); and Braithwaite Co. (India) Ltd. vs. CIT [1978] 111 ITR 542 (Cal.), stand distinguished by it (tribunal) on facts. 3.3 The position of law is not ambival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential difference that reference stands made to section 105 of the Transfer of Property Act, and no other; rent being specifically defined under the Act. In fact, the provision of section 194-IA, brought on the statute by Finance Act, 2013 w.e.f. 01.04.2013, endorses the said position in law. Care must, however, be taken, even as explained by the hon'ble apex court in Panbari Tea Co. Ltd. (supra), that one is not camouflaged for the other by using clever phraseology, and what is to be looked at is the substance of the transaction, for it may well be that the so called premium is in fact advance rent or what is termed as rent is only a deferred price. It is in this context that the hon'ble courts have with regard to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s firstly an inference of fact, based on primary fact/s. Two, with respect, we differ in-as-much as the reserving a token rent, to our mind, only implies that in effect and substance the property stands beneficially passed on to the transferee for a price; the lessor-transferor retaining only a titular interest. The annual rent reserved in the case of Jt. CIT vs. Mukund Ltd. [2007] 106 ITD 231 (SB) was also, it may be noted, at Rs.1/-, coupled with a 99 year lease for setting up of a plant on the demised land, and which was construed by the special bench to imply of the 'lease premium' as being the price for the lease hold rights therein. Further, we observe that the assessment order states the annual rent at Rs.60,000/-. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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