TMI Blog2016 (3) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... e having not claimed any deduction for any expenses on account of payment to Vikram Electric Equipment P. Ltd. either in its profit and loss account or in the computation of taxable income filed. It was only that the Assessing Officer recorded a loss of ₹ 19,700/-. This obviously, did not include any addition of either ₹ 4.02 crores or ₹ 1.24 crores. - Decided in favour of assessee - I.T.A .No.-1949/Del/2011 - - - Dated:- 11-2-2016 - SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For The Appellant : Shri R.S. Singhvi, CA For The Respondent : Shri V.R. Sonbhadra, Sr. DR ORDER PER BEENA PILLAI, JUDICIAL MEMBER: The present appeal is filed by the assessee against the order of the ld. CIT(A)-XVII, New Delhi, vide order dated 24/02/2011 on the following grounds: 1. That the impugned order dt. 24.2.11 passed by theld. CIT(A)XVII, New Delhi is bad in law and wrong on facts. 2. That on the facts and circumstances of the case, the ld. CIT(A) has erred in law in upholding the action of the Assessing Officer treating the amount payable to the consolidator amounting to ₹ 95,44,264/- as non genuine expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 250 8802690 9544264 165058204 Total 146711250 8802690 9544264 165058204 3. The ld. Assessing Officer observed that the assessee has claimed the amount for consolidation of the land. The assessee had also submitted that the role of the consolidator was to identify the land, approach the land owners, negotiate with them and carry out due diligence of land regarding ownership, title etc. It was submitted that the consolidator settles the price with the land owners. The ld. Assessing Officer disregarded the arguments of the assessee as no evidence were produced to show that any such services were rendered by the said consolidator. The ld. Assessing Officer, therefore, made addition to an extent of ₹ 95,44,264/-. 4. Aggrieved by the order of the ld. Assessing Officer the assessee preferred an appeal before the ld. CIT(A). The ld. CIT(A) has dealt with the issue at para 2.3 of his order which is reproduced herein below: 2.3 I have carefully considered the asstt. order and the submission made by the ld. AR on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es subject to TDS u/s 194H of the Act. Alternatively, since the payment was made under the MoU, it is in the nature of payment to contractor which is subject to TDS u/s 194C of the Act. Since no TDS has been deducted in respect of the above payment, the Assessing Officer has held that the above sum is disallowable u/s 40(a)(ia) of the Act. The Assessing Officer has, accordingly, added the above amount of ₹ 95,44,264/- to the appellant s income for the year. 5. Aggrieved by the order of the ld. CIT(A) the assessee is in appeal before us now. 6. We have heard the rival submissions of the ld. AR and the DR and have perused the paper book filed before us. 7. The ld. AR submits that on identical set of facts, the issue has been decided in favour of the assessee and against the revenue by the D Bench of the ITAT in ITA No. 2361/D/2011 and ITA No. 1953/D/2011 for the AY 2007-08 in the case of M/s Finian Estate Developers P. Ltd. order dated 5th October, 2011. We further submit that the H Bench of the Tribunal in the case of Zebina Real Estate P. Ltd. vs. ITO in ITA No. 1429/D/2011 and 1430/D/2011 order dated 12.4.2013 followed the judgment of Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue having accepted the decision of the ITAT in the case of ITO vs. Finian Estates Developers P. Ltd., and with there being nothing to distinguish it in relation to the case of ZREPL, the Court is not inclined to interfere with the impugned order of the ITAT which, in the opinion of the Court, has rightly relied upon its earlier decision in the case of Finian. 16. Having considered at length the submissions of ld. Counsel for the Revenue, the pleadings and the documents not only in the case of PBDPL but also in the case of Finian, the Court is unable to find any distinction between the two cases as far as the clauses in the MoU between the parties and VEEPL or the payment made to the later pursuant thereto. Again, with the Revenue having accepted the decision of the ITAT in the case of Finian, and with the Revenue being unable to bring out any distinguishing feature as far as the case of PBDPL, the Court sees no reason why it should interfere with the impugned order of the ITAT. 7.3. The ld.AR submitted that in the facts of the present case before us, the assessee has the payment to Vikram Electric Equipment P. Ltd., on account of transfer of certain rights of Vikram Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, since the assessee required contiguous land holdings in order to develop a colony. The d.Ar submitted that in case land which was agreed to be acquired by Vikram Electric Equipment P. Ltd. was not found to be suitable by the assessee, it was Vikram Electric Equipment P. Ltd. which would have to bear the consequences, indicating that Vikram Electric Equipment P. Ltd. was not acting as an agent on behalf of the assessee, but was working on a principle to principle basis, independently. 8. On the other hand, the stand of the Ld.DR, has been that MOU signed by the assessee and Vikram Electric Equipment P. Ltd. lays down that Vikram Electric Equipment P. ld. Makes it clear that Vikram Electric Equipment P. Ltd. was acting as an agent of the assessee, rendering services, for which, the provisions of section 194H of the Act are applicable and it is correctly applied by the ld. CIT(A). 9. We have perused the agreement in this regard. It is seen that clause 3.2 of the MOU between the assessee and Vikram Electric Equipment P. Ltd. makes it clear that Vikram Electric Equipment P. Ltd. or its agent agreed to assign their rights to purchase the land in favour of the assessee. It woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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