TMI Blog2023 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... on of additional evidence - HELD THAT:- We deem it appropriate that the additional evidence so submitted by the assessee be considered and specific finding be recorded in this regard after examining the additional evidence. In view of the same, the matter is set-aside to the file of the ld CIT(A) who shall examine the additional evidence and shall decide the matter a fresh as per law after providing reasonable opportunity to the assessee. In the results, the grounds no. 5-7 are allowed for statistical purposes. - ITA Nos. 1573 to 1578/Chd/2019 - - - Dated:- 30-1-2023 - Shri. Sudhanshu Srivastava, JM And Shri. Vikram Singh Yadav, AM For the Assessee : Shri Tej Mohan Singh, Advocate For the Revenue : Shri Vivek Nangia, CIT DR ORDER PER SUDHANSHU SRIVASTAVA, JM: All these appeals have been filed by the assessee against the consolidated order passed by the Ld. Commissioner of Income Tax(Appeals)-43, New Delhi [hereinafter referred to as CIT(A) ] pertaining to A.Y. 2007-08 to A.Y. 2012-13. Since the issues involved in all the appeals were similar, they were heard together and are being disposed off by this common and consolidated order for the purpose of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(3) read with Section 153A of the Act is erroneous, arbitrary, opposed to law and facts of the case and is, thus, untenable. 3. Briefly the facts of the case are that the assessee is a non-resident and during the financial year relevant to the impugned Assessment Year, the assessee had booked certain units in M/s Omaxe Ltd. Novelty Mall, Amritsar. The assessee had made payment of 95% of the basic sale price at the time of booking the said units and was provisionally allotted these units and in lieu of 95% payment of the basis sale price, M/s Omaxe Ltd. was to pay monthly assured return to the assessee till the time of possession of these units were handed over to the assessee. 3.1 As per information available with the AO, the assessee has received assured return of Rs 321,375/- on which TDS @ 15% has been deducted by M/s Omaxe Ltd. as per Article-12 of India and U.K DTAA r/w Section 90 of the Act. As per the AO, as per the provisions of Article 12 of Indo-UK DTAA as well as definition of interest as per Section 2(28A) of the Act, the money paid by the assessee to M/s Omaxe Ltd. is a capital investment for purchase of the property, the assessee will get back the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the amount has not been received was also not accepted holding that income from other sources has to be taxed on accrual basis, however, the AO was directed to allow credit for TDS. 5. Being aggrieved with the said findings and the order of the Ld. CIT(A), the assessee is in appeal before us. During the course of hearing, various contentions have been raised by the Ld. AR assailing the order of the Ld. CIT(A). One of the contentions which have been raised relates to applicability of Article12 of the India UK DTAA. It was submitted that an identical matter has come up before the Coordinate Chandigarh Benches in case of Shri Mohinder Singh Sanghera Vs. Astt. DIT (ITA No. 369 to 371/Chd/2016 vide order dt. 17/09/2018) where the Coordinate Benches has clearly held that the assessee had a claim of debt against M/s Omaxe Ltd. till the proposed property is constructed and possession handed over to the assessee and conveyance deed executed and registered. It was accordingly held in that case that the assured return received by the assessee was in the nature of interest and has been rightly brought to tax as per Indo-UK DTAA. It was further submitted that the said decision has since b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the company i.e. Omaxe Ltd will continue to have full authority over the proposed Unit and all the amounts paid by the allottee shall merely be a token payment and shall not give any lien or interest in the said unit to the allottee. Hence, as per the above clause (23), even after payment of 95% of the sale consideration, in advance, the assessee did not get any lien or interest in the proposed unit to be constructed by Omaxe Ltd. However, in lieu of the 95% of the total sale consideration settled, the Omaxe Ltd. agreed to pay a certain fixed monthly amount to the assessee in the name of assured return. Now the question arises what is the nature of the advance payment made by the assessee to the Omaxe Ltd and what is the nature of the amount received by the assessee as assured return. The facts and circumstances on the file reveal that the property for which the assessee had paid the money was not in existence at the time of making payment and even subsequently was not capable of yielding any income in the shape of rent, lease money and even otherwise was not capable to be commercially exploited. 11. Under the circumstances, it cannot be said that the assured return was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y advance money was paid by the assessee to get the commercial floors at some concessional rate or on an early date rather as discussed above, as per the clause of the agreement, even after payment of 95% of the price, the assessee did not get right or lien in the property and as discussed above, this was a financial transaction between the assessee and Omaxe Ltd. In view of this, we hold that the assured return received by the assessee was in the nature of interest and the assessee has rightly returned / offered the same as interest income. 13. In view of this, we do not find any justification on the part of the lower authorities in treating the receipts of the assessee as income from other sources . We, accordingly, set aside the impugned order and direct that the assessee in this case has rightly paid the taxes as India U.K. DTAA. No further addition is warranted. However, the claim of the assessee that it is a capital receipt not liable for taxation is rejected. The appeal of the assessee is, therefore, treated as allowed. 8. The aforesaid decision has since been followed in subsequent decision in case of Shri Karnial Singh Vs. Astt. DIT (supra). Nothing has been b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the same, the matter is set-aside to the file of the ld CIT(A) who shall examine the additional evidence and shall decide the matter a fresh as per law after providing reasonable opportunity to the assessee. In the results, the grounds no. 5-7 are allowed for statistical purposes. 13. In view of the above, the other grounds of appeals namely grounds no. 1, 2 and 3 have become academic in nature and the same are dismissed as infructious. 14. In the result, the appeal of the assessee is partly allowed for statistical purposes ITA No. 1574/Chd/2019 For the A.Y. 2008-10 15. Both the parties fairly submitted that the facts and circumstances of the case are exactly identical as in ITA No. 1573/CHD/2019 except for the difference in the amount of assured return involved. Therefore, our findings and directions contained in ITA No. 1573/Chd/2019 shall apply mutatis mutandis to this appeal also and the appeal is partly allowed for statistical purposes. ITA No. 1575-1578/Chd/2019 For the A.Y. 2009-10 to A.Y 2012-13 16. Both the parties fairly submitted that the facts and circumstances of the case are exactly identical except for the difference in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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