TMI Blog2022 (10) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... art for use of the premises. While there are no expenses incurred against the rent except for general building maintenance and municipal charges, the CAM involves employment of separate staff and separate operations involved on day to day basis. Hence, we hold that the provisions for rent are governed by Section 194I and CAM charges by Section 194C - AO is directed to re-compute the CAM charges, taking into consideration the two sections mentioned above. Period of limitations for passing an order u/s 201(1) / 201 (1A) - Treating the assessee as assessee in default - With regard to barring by limitation, we rely on the order of the Co-ordinate Bench of Tribunal in the case of ITO Vs. Sh. Rang Infrastructure (P.) Ltd. [ 2019 (9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments filed by the Appellant showing that deductee had already filed the returns and paid tax on their respective income thereby ignoring CBDT Circular and Hon'ble Supreme Court judgment in the case of Hindustan Coco Cola Beverages (P) Ltd. which were binding on the authorities below and therefore the orders passed by the authorities below are liable to be cancelled. 5. That without prejudice to the above, the authorities below had erred in law as well as on facts in holding that payments made for Common Area Maintenance ( CAM ) were 'Rental' in the nature and will attract provisions of section 1941 of the Act and not section 194C for tax deduction at source, thereby ignoring the fact that the Appellant had paid only AMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201(1A) on short deduction deserves to be cancelled. 9. That the Ld. CIT(A) had ignored the fact that these kind of contract fall in the definition of work and attract section 194C and are not liable to tax deduction u/s 1941. 3. The provisions of TDS on rent are governed by Section 194I and maintenance contract are governed by Section 194C of the Income Tax Act, 1961. In this backdrop of the provisions of the Act, the affairs of the assessee are examined. As per the lease deed entered by the assessee with M/s Gopalan Enterprises, Bangalore, the assessee obtained piece and parcel of the shop on lease of unit no. 121 on 1st Floor with a carpet area of 1920 sq. ft. and shop no. 226 on 2nd Floor with a carpet area of 1722 sq. ft. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so noticed that there is no distinction between CAM charges and lease rent payments except, for raising separate invoices. The Explanation below section 1941 which defines Rent takes into its ambit any payment, by whatever name called, under any lease, sub-lease, tenancy or any other agreement or arrangement for the use of (either separately or together) any (b) building or (c) land appurtenant, to a building (including factory building) or (h) fittings, whether or not any or all of the above are owned by the payee and hence it is clear that any payment even for use of any building and land appurtenant, there to including furniture/fittings is part of rent. CBDT vide circular No. 715 dated 08.08.1995 (Question No. 24) has also clarified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for utilizing the serves of airport and not of the premises in essence. Accordingly, I hold that the AO has rightly distinguished the same from the facts of appellant. Hence, the grounds of appeal are dismissed. 6. The undisputable fact in this case is that while the lease rentals are paid based on a fixed percentage on the net revenue, the CAM charges are based on the per sq. ft. area. The observation of the ld. CIT(A) is that the rent by any name, lease, sub-lease, tenancy or the reliance on the judgment wherein the services are intrapolated into the rent stand on a different pedestal. In the instant case, the determination of the rent or CAM are separate and the CAM arrangements are not essential and an integral part for use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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