TMI Blog2013 (9) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... dent : Mr. Prabhat Jha For the Petitioner : Mr. J.D. Mistry a/w Mr. Mahesh O. Rajora ORDER PER AMIT SHUKLA, J.M. The present appeal has been preferred by the Revenue and the cross objection by the assessee, challenging the impugned order dated 27th December 2011, passed by the learned Commissioner (Appeals), Mumbai, in relation to order under section 201(1) / 201(1A) of the Income Tax Act, 1961 (for short ―the Act‖) for the assessment year 2009 10. 2. The only issue involved in the present appeal preferred by the Revenue is in respect of non deduction of TDS and levy of interest under section 201(1) / 201(1A) on the ground that the assessee has not complied with the provisions of section 194 I. To challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee for the additional FSI. The Assessing Officer held that it is in the nature of rent under section 194 I and, therefore, the assessee was liable to deduct TDS and, accordingly, he levied interest under section 201(1) / 201(1A). 5. Before the learned Commissioner (Appeals), the assessee had made detailed written submissions, which have been incorporated from Page 4 to 46 of the appellate order. The learned Commissioner (Appeals), after appreciating the written submissions and also that the assessee s facts are similar to the decision of the Tribunal in Shree Naman Developers Ltd. deleted the said demand after observing and holding as under: 5.10 In the present case, the written submission furnished by the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, has observed and held as under: 7. We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that a similar issue involved in the case of Shree Naman Hotels Pvt. Shree Naman Developers Ltd. has been decided by the Tribunal in favour of the assessee vide an order dated 14-08-2013 passed in ITA No. 688 to 691/Mum/2012 by following the decision of the co-ordinate Bench rendered jo. the case of M/s Wadhwa Associates Realtors Pvt. Ltd. vide order dated 3-7-2013 assed in ITA No. 695/Mum/2012. In the case of M/s Wadhwa Associates Realtors Pvt. L d. (supra), a similar issue was decided by the Tribunal in favour of the assessee for the following reasons given in para 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MMRD in exercise of power u/s. 43 r.w. Sec. 37(1) of the Maharashtra Town Planning Act 1966, MRTP Act and other powers enabling the same has approved the proposal to modify regulation 4A(ii) and thereby increased the FSI of the entire ‗G Block of BKC. The Development Control Regulations for BKC specify the permissible FSL Pursuant to such provisions, the assessee became entitled for additional FSI and has further acquired/purchased the additional built up area for construction of additional area on the aforesaid plot. Thus the assessee has made payment to MMRD under Development Control for acquiring leasehold land and additional built up area. The decisions of the Tribunal in the case of M/ s. National Stock Exchange (supra) and Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner (Appeals) was justified in coming to the conclusion that the payment made by the assessee to MMRDA is not in the nature of rent within the ambit of section 194 I. Consequently, the order passed by the learned Commissioner (Appeals) is hereby upheld and the ground raised by the Revenue is treated dismissed. 9. In the result, Revenue s appeal is treated as dismissed. We now take up assessee s cross appeal, vide which, inter alia, following grounds have been raised: ― The Commissioner of Income Tax (Appeals)-14, Mumbai [hereinafter referred to as CIT(A)] erred in not appreciating the fact that State Government and local authority have an overriding title on payment made to MMRDA and hence same does not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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