TMI Blog2016 (10) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... lso for additional built up are and also for granting free of FSI area, such payment cannot be equated to rent. It is also seen that the 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 FSI. 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 leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year declaring the total income of ₹ 1,20,62,49,330/-. The return was processed and the AO passed assessment order u/s 143(3) of the Income Tax Act, 1961 (in short The Act ) determining the total income of ₹ 1,77,04,05,282/- after inter alia making disallowance of ₹ 51,32,63,248/- towards lease rent payment made to MMRDA. The assessee challenged the assessment order before the CIT(A). The Ld. CIT(A) allowed this ground of appeal of the assessee and deleted the disallowance made u/s 40(a)(ia) of the Act. Against the said order the revenue is in appeal before the Tribunal. 2. The revenue has challenged the impugned order dated 14/03/2014 passed by the Ld. CIT(A) on the following effective grounds:- 1. Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided on its own merit, the AO has rightly made the disallowance in question and the Ld. CIT has wrongly allowed the appeal of the assessee. 5. We have heard the rival submissions and perused the documents carefully in the light of the respective contentions of the parties. We have noticed that the coordinate Bench of the Tribunal has decided the identical issues in favour of the assessee in assessee s own cases referred above, by following the decision dated 3.6.2013 rendered by the Mumbai Tribunal in ITA No.695/Mum/2012 and CO No 6/Mum/2013 in the case of Wadhawa Associates Retailors Pvt. Ltd.. The relevant portion of the order reads as under:- 3. To understand the issue reference can be made to the facts relating to assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the sake of completeness the relevant portion of order passed in the case of ITO vs. M/s.Wadhawa Associates Realtors Pvt. Ltd.(supra) is as under: 9. We have considered the rival submissions, perused the order of the lower authorities and the material evidence brought on record in the form of paper Book and the judicial decisions relied upon by the rival parties. The entire grievance revolves around the premium paid by the assessee to M/s. MMRDA Ltd. for the leasehold rights acquired by the assessee through the lease deed dt. November, 2004. It is the say of the Revenue that this lease premium was liable for deduction of tax at source failing which the assessee is to be treated as assessee in default. It is the say of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area. The decisions of the Tribunal in the case of M/s. National Stock Exchange (supra) and Mukund Ltd (supra) have been well discussed by the Ld. CIT(A) is his order. The decision of the Hon ble Jurisdictional High Court in the case of Khimline Pumps Ltd. (supra) squarely and directly apply on the facts of the case wherein the Hon ble Jurisdictional High Court has held that payment for acquiring leasehold land is a capital expenditure. Considering the entire facts in totality in the light of the judicial decisions vis- -vis provisions of Sec. 194-1, definition of rent as provided under the said provision, we do not find any reason to tamper or interfere with the findings of the Ld. CIT(A) which we confirm. 6. Since, the facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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