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TMI Blog2012 (8) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... ntals for the said hotel premises, on and from 1.4.2006 was not finalized between the assessee and the landlords as there were some differences amongst the members of the land lords family. The land lords had demanded lease rent of Rs. 75,00,000 per month for the said premises as against Rs. 50,00,000 per month offered by the assessee. The assessee, in these circumstances where the lease rentals had not been agreed upon in order to close its books of account for the year ended 31.3.2007, made a provision of an amount of Rs. 9,00,00,000 as lease rent i.e. @ 75 lakhs per month for 12 months payable to the land lord and accordingly finalized its accounts. Further, the assessee neither made any payment to the land lords on account of lease rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the order of the ITO-TDS, the assessee went in appeal before the CIT(A). The main issues of dispute between the assessee and the Department were as under : (i) the Assessing Officer, in his order, determined the TDS to be remitted by the assessee on lease rent of Rs. 9 Crores as against the lease rent of Rs. 6 Crores paid by the assessee. (ii) the Assessing Officer, in his order, determined and charged the interest on delayed payment of TDS calculated on lease rent of Rs. 9 Crores per annum as against Rs. 6 Crores per annum paid by the assessee. The learned CIT(A) after examining the case and hearing the assessee, disposed off the appeal by order dt.12.3.2010 granting the assessee partial relief. 3. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the TDS remitted included interest under section 201(1A) thought the certificate is issued for the entire amount. 9. For these and other grounds that may be preferred during the course of appeal." 4.1 The learned Departmental Representative, at the outset, laid out the main contention of Revenue was that the assessee ought to deduct tax on an amount of Rs. 9 Crores and not on Rs. 6 Crores as erroneously held by the learned CIT(A). It was also submitted by the learned Departmental Representative that interest under section 201(1A) for delayed payment should be computed on the basis of lease rent of Rs. 9 Crores and not on Rs. 6 Crores. The learned Departmental Representative further contended that as regards the working out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on 18.3.2008. The appellant further claimed the said amount as a deduction in Assessment Year 2008-09 and the return of income for the said assessment year containing such a claim was filed on 3.10.2008. Thus, all the above mentioned actions of the appellant (reversing the entry of Rs. 3,00,00,000), which were carried out on 3.12.2007, 18.3.2008 and 3.10.2008, were all carried out much before 13.3.2009 i.e. the date of survey under section 133A. Therefore, the assertion of the TDS AO that the contention of the appellant regarding the reversal of the entry of Rs. 3,00,00,000 is an only after thought is not correct. 8.2 In view of the above discussion, I am of the view that the balance sum of Rs. 3,00,00,000 did not constitute lease rent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in the case of M/s. Shoorji Vallabhdas & Co. reported in 46 ITR 144 and also in the case of Godhra Electricity Co. reported in 225 ITR 746. In the instant case, the actual rent to be paid by the assessee is what is to be considered for the purpose of determining the TDS to be made under section 194-I and consequential interest under section 201(1A) of the Act. 5.3 The provisions of TDS were introduced in the statute so that tax is collected by Revenue at source on certain types of income. In other words, it is the income which determines the extent or amount of tax to be deducted at source. Income sought to be taxed by taxing statutes is always the real income. In the instant case, it is clear that the lease rent for the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally agreed for Rs. 75 lakhs per month has now been revised down and to Rs. 50 lakhs. 5.5 After due consideration of the submissions made, we are of the view that the Annual Report and the Auditors Report do not in any way alter or controvert the fact that the actual lease rent on which TDS is to be made is Rs. 6 Crores. As regards the lease agreement dated 1.12.2007, we find that it is not factually correct, to state that the lease rent originally agreed upon was Rs. 75 lakhs per month and was subsequently revised down and to Rs. 50 lakhs per month as there is no mention of this therein nor was there on record any prior lease agreement for lease rent of Rs. 75 lakhs per month. The lease agreement dt.1.12.2007 as per recitals thereof indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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