No AI summary yet for this case.
Income Tax Appellate Tribunal, CHANDIGARH BENCHES, ‘A’ CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
per the provisions of section 115A sub-section (5) or that the Assessing
officer was of the view that the assessee has been receiving interest income
only. In view of this, the reopening of the assessment is held valid.
Now, coming to the merits of the case, the Assessing officer while
making the impugned additions has relied upon the definition of ‘interest’
as provided under article 12 of the India –U.K. DTAA, which read as
under:-
“The term interest as used in Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtors profits, and in particular, income from Government Securities and income from bonds and debentures, including premiums and prizes attaching to such securities, bonds or debentures but, subject to the provisions of paragraph 9 of this Article, shall not include any item which is treated as a distribution under the provisions of Article 11 (Dividends) of this convention.” 10. The Assessing officer has also referred to the clause 23 of the
allotment letter issued by the Omaxe Ltd to the assessee, which reads as
under-
“23. Unless a conveyance deed is executed and registered, the company shall continue to have full authority over the said Unit and all amounts paid by the Allottee (s) under this allotment shall merely be a token payment for purchase of the allotted unit and shall not give him any lien or interest in the said Unit until he has complied with all the terms and conditions of this Allotment and Conveyance of the said Unit has been executed and registered in his favour.”
ITA Nos. 369 to 371/Chd/2016 & 372 to 374/Chd/2016- Sh. Mohinder Singh Sanghera & Jatinder Singh Chatta 6
A perusal of the above clause 23 of the Allotment letter reveals that as per
the terms and conditions of the allotment letter, unless and until the
Conveyance deed is executed and registered, 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.
Under the circumstances, it cannot be said that the assured return was
any return from the property in respect of which the assessee had paid the
amount. Even as per the clause 23 of the allotment letter as discussed
above, even for making the investment, the payment of the advance money
at the rate of 95% of the agreed price, the assessee did not get right of lien
in the proposed property. The assessee, under the circumstances, had a
claim of debt against the Omaxe Ltd, which means the assessee had
ITA Nos. 369 to 371/Chd/2016 & 372 to 374/Chd/2016- Sh. Mohinder Singh Sanghera & Jatinder Singh Chatta 7
advanced money to the Omaxe Ltd. which was nothing but a debt claim till
the proposed property is constructed, possession handed over to the
assessee and the conveyance deed executed and registered. In our view, it
was a financial transaction and the assured money return received by the
assessee was nothing else than the interest received by the assessee on the
finances made by the assessee to the Omaxe Ltd to be used for the
construction of the property. Therefore, the Omaxe Ltd had rightly
deducted the tax @ 15% of the interest / assured return paid to the
assessee. Even the assessee on being asked to file the return has also
treated the said receipts as interest income. However, subsequently, the
assessee changed his stand and come with a plea that the assured return is
only in the nature of capital receipt. The assessee in this respect has placed
reliance on several decisions of the High Courts and Supreme Court.
Without referring to each of the decision, we may point out that the
decisions referred to by the assessee are not applicable to the facts and
circumstances of the case e.g. in the case of ‘CIT Vs. Saurashtra Cement
Ltd (2010) 325 ITR 042 (SC) : 192 taxman 300 (SC), the assessee in that
case had received liquidated damages for delay in supply of plant and
machinery. The Hon'ble Supreme Court held that the damages were directly
and intrinsically linked with the procurement of the capital assets i.e.
cement plant.
Similarly in the other case laws relied upon by the Ld. Counsel for
the assessee, it was held that if any expenditure is incurred such as interest
paid for acquiring assets, the same will be added to the cost of the assets.
However, none of the case laws relied upon by the assessee as discussed
above, are applicable to the facts and circumstances of this case. Neither
ITA Nos. 369 to 371/Chd/2016 & 372 to 374/Chd/2016- Sh. Mohinder Singh Sanghera & Jatinder Singh Chatta 8
any damages were paid by the Omaxe Ltd. to the assessee for late delivery
of the possession of the commercial floors in question nor any 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.
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.
Since the facts and issue involved in all the appeals are identical,
hence, the decision arrived at will apply mutatis-mutandis to all the
captioned appeals (ITA Nos. 369 to 371 and 373 to 374/Chd/2016), and
accordingly all the appeals are treated as allowed in the same terms and
with identical directions.
Order pronounced in the Open Court on 07.09.2018
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 07.09.2018
ITA Nos. 369 to 371/Chd/2016 & 372 to 374/Chd/2016- Sh. Mohinder Singh Sanghera & Jatinder Singh Chatta 9
Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR