TMI Blog2018 (3) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act and he does not deduct, or does not pay or after deduction fails to pay the whole or in part of the tax as required under the provisions of the Act, then only such person shall be deemed to be an assessee in default in respect of payment of such tax. In the case in hand, the assessee was not liable to deduct any tax on payment of lease premium to MMRDA because it was capital expenditure to acquire land on lease with substantial right to construct a commercial building complex. - Decided in favour of assessee - I.T.A. No. 242-243/Kol/2016 - - - Dated:- 19-1-2018 - Sri J. Sudhakar Reddy, Hon ble Accountant Member And Sri Aby T. Varkey, Hon ble Judicial Member None, appeared on behalf of the assessee Shri G. Mallikarjuna, CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 965)] on the issue. 5. That on the facts circumstances of the case, the department craves to add, alter, modify the above grounds of appeal, during the course of appellate proceedings. As the Grounds of Appeal for the Assessment Year 2011-12, are identical as that for the Assessment Year 2010-11, they are not reproduced for the sake of brevity. 2. The ld. Counsel for the assessee, filed a petition for adjournment. As this is not a fit case for grant of adjournment, we reject the same and dispose of this case ex-parte on merits, qua the assessee, after hearing the ld. D/R. 3. Facts in brief:- The assesse is a Joint Venture Company promoted by TCG Urban Infrastructure Holdings Ltd (51%), Hiranandani Properties Pvt Ltd (24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal the ld. First Appellate Authority followed his earlier order for the Assessment Year 2008-09 and held that Section 194I is not attracted on instalment payable by the assessee to MMRDA. 5. Aggrieved, the revenue is in appeal before us. 6. Heard Shri G. Mallikarjuna, the ld. CIT, D/R. The ld. D/R, vehemently contended that what is termed as lease premium, is nothing but advance rent paid. He pointed out that lease premium is not a non-refundable deposit and for the consideration for use of loan and hence partakes the character of rent. He prayed that the order of the Assessing Officer be upheld. 7. We find that the Tribunal has, in the assessee s own case for the Assessment Year 2008-09, on an identical issue held as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f lease premium to MMRDA. At the cost of repetition, it is worthwhile to mention that for invoking the provisions of section 201(1)of the Act, this is a precondition that the person should be required to deduct any sum in accordance with the provisions of this Act and he does not deduct, or does not pay or after deduction fails to pay the whole or in part of the tax as required under the provisions of the Act, then only such person shall be deemed to be an assessee in default in respect of payment of such tax. In the case in hand, the assessee was not liable to deduct any tax on payment of lease premium to MMRDA because it was capital expenditure to acquire land on lease with substantial right to construct a commercial building complex. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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