TMI Blog2017 (12) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ation on the land portion. Hence, bifurcation of the consideration into land and building separately becomes necessary, for which purpose we are remanding this issue to the file of Ld. AO. Accordingly, ground no. 1 raised by the assessee is allowed for statistical purposes. TDS u/s 194C - Disallowance made u/s 40a(ia) - Crossword Book Reward Programme Card printing charges - Held that:- DR fairly agreed for setting aside this issue to the file of the Ld. AO. Accordingly, we remand this issue to the file of the Ld. AO to decide the same in the light of the second proviso to section 40a(ia) of the Act and in the light of decision rendered by the Hon’ble Delhi High Court in the case of Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is possible in view of fact that the entire showroom was purchased by the assessee on outright basis. This reply not being satisfactory, the Ld. AO attributed 50% of the consideration amounting to ₹ 1,64,00,000/- towards land and disallowed depreciation thereon at 5% in the sum of ₹ 8,20,000/- (1,64,00,000 * 5%) in the assessment. This action was upheld by the Ld. CIT(A). Aggrieved, the assessee is in appeal before us on the following grounds: 1.i) That on the facts and circumstances of the case, Ld. CIT(A) has erred in relying the judgment in CIT vs Alps Theatre, 65 ITR 377 (SC) since the assessee purchased showroom at 8, Elgin Road on outright basis and the purchased consideration did not show any bifurcation for land cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property as land and thus disallowed the proportionate depreciation on both the property amounting to ₹ 2,65,903/- (114648.00 plus 1,51,255). It has been held by this Tribunal as under: 11. We have heard the rival contentions and perused the materials available on record. At the outset, we find that assessee claimed to have made the investment in the aforesaid properties by paying composite amount. However, this fact has not been brought on record by Ld. AR whether it was composite payment for the land building. In the instant case the AO has relied in the order of CIT Vs. AIPS Theatre 65 ITR 377 and DCIT Vs Capital Car Private Limited reported, supra for disallowing the depreciation. However in our view the facts were di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether. From the above details it is clear that the facts are different with the instant case. Similar facts were there in the case of DCIT Vs Capital Car Private Limited reported. However we find that on similar facts where the rates of the building are composite with the land then the Hon,ble Tribunal of Bangalore has decided the issue in favour of the assessee in the case of CIT Vs. Rajesh Exports Ltd. (2006) 9 SOT 28. The relevant extract is reproduced below:- Where the assessee purchase a building and the purchase price (as per sale deed) is a composite one (sale deed does not indicate the prices of land and building separately), then no distinction at least in the consideration paid to the vendor can be made and the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether the Ld. CIT(A) was justified in confirming the disallowance of ₹ 76,732/- and ₹ 40,000/- made u/s 40a(ia) of the Act, in the facts and circumstances in the case. 6. The brief facts of this issue is that the Ld. AO observed that the assessee had made payment of ₹ 76,732/- to M/s Crossword Book Stores Ltd. and ₹ 40,000/- to the Times Internet without deduction of tax at source and accordingly disallowed the same u/s 40a(ia) of the Act. Before the Ld. CIT(A), the assessee pleaded that the assessee is engaged in the business of real estate and apart from this, it has a franchisee license of the book stores Crossword which is located at No. 8, Elgin Road, Kolkata. It was pleaded that this amount of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from payments to M/s Crossword Bookstore Ltd. b) That on the facts and circumstances of the case, Ld. CIT(A) is wrong in confirming disallowance of ₹ 40,000/- u/s 40a(ia) without appreciating the explanation regarding non-deduction of TDS from payment to M/s Times Internet. 9.We have heard the rival submissions. We find that the Ld. AR reiterated the submissions made before lower authorities. Alternatively Ld. AR pleaded that this issue be remanded to the file of the ld AO for examination in the light of Second proviso to section 40a(ia) of the Act to the effect that in case if the payees have included this subject mentioned payments in their respective returns then the assessee should not be invited with disallowance u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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