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2015 (12) TMI 984 - DELHI HIGH COURT

2015 (12) TMI 984 - DELHI HIGH COURT - TMI - TDS u/s 194I - Lease premium for the land given on lease - whether is in the nature of a capital expense not falling within the ambit of Section 194I - Held that:- In Durga Khanna v. Commissioner of Income Tax [1969 (1) TMI 1 - SUPREME Court ] the Supreme Court held that, prima facie, premium or salami was not income and the onus was on the Revenue to show that facts existed which would make it a revenue payment. As far as the present case is concerne .....

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. Muralidhar And Vibhu Bakhru, JJ. For the Appellant : Mr Rohit Madan, Senior Standing counsel For the Respondents : Mr Sunil Fernandes with Mr Deepak Pathak And Ms Misthi Jain, Advs ORDER ITA 918/2015 and CM No. 29413/2015 (for condonation of delay in re-filing the appeal) ITA 920/2015 and CM No. 29546/2015 (for condonation of delay in refiling the appeal) 1. These are two appeals by the Revenue under Section 260A of the Income Tax Act, 1961 ('Act') directed against the common order dat .....

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ral orders, the practice directions were issued after consultation with the bar and after giving sufficient time for the bar to get acquainted with the requirement of e-filing. Additionally, the Court has also provided scanning machines at the filing counter so that no difficulty is caused to the bar for switching over to the system of e-filing. In any event, the delay of over two years on this ground is wholly unacceptable. Consequently, the Court is not persuaded to condone the extraordinary d .....

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g within the ambit of Section 194I of the Act. While the Assessing Officer ('AO') treated it as revenue expenditure, the Commissioner of Income Tax (Appeals) ['CIT (A)'] reversed it and held it to be in the nature of a capital expense not requiring deduction of tax at source under Section 194I of the Act. The ITAT has in the impugned order concurred with the CIT (A) and dismissed the Revenue's appeals. 4. Mr. Rohit Madan, learned Senior Standing counsel for the Revenue submit .....

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Ltd. [1998] 233 ITR 468 (SC) and the decision of the Madras High Court in Commissioner of Income Tax v. Gemini Arts P. Ltd. (2002) 254 ITR 201. He also referred to the recent decision of this Court in Krishak Bharati Cooperative Ltd. v. Deputy Commissioner of Income Tax (2013) 350 ITR 24 (Del). 5. Mr. Sunil Fernandes, learned counsel appearing for the Assessee referred to the specific factual findings of the CIT (A) at its discussion of the clauses of the lease agreement which have been set out .....

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I of the Act. The critical word, therefore, is "income" in the hands of the payee. On facts it requires to be first noted that the clauses of the lease agreement with MMRDA dated 9th April 2008 clearly state that the payment of ₹ 88,52,75,000 is only on the ground of lease premium and not rent. There is no provision in the lease agreement for adjustment of the premium amount against the annual rent of ₹ 10,415 payable by the Assessee to MMRDA. 7. The second factor is that u .....

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