CIT v. Khimline Pumps Ltd.

VIVEEK MATHREJA,MUMBAI vs. ITO 21 (2)(4), MUMBAI

In the result, appeal of assessee is partly allowed

Bench: Shri Vikas Awasthyआअसं. 7645/मुं/2019 (िन.व.2011-12) Viveck Mathreja, Plot No.5, Trishul, Road No.6, Hatkesh Society, Juhu, Vile Parle, Mumbai-400056. ...... अपीलाथ" /Appellant Pan: Acxpm8278M बनाम Vs. Ito, 21(2)(4), Kautilya Bhavan, ..... "ितवाद"/Respondent Bandra East, Mumbai-400050. अपीलाथ" "ारा/ Appellant By : Sh. N.R. Agarwal "ितवाद" "ारा/Respondent By : Sh. Sanjay J. Sethi सुनवाई क" ितिथ/ Date Of Hearing : 01/06/2021 घोषणा क" ितिथ/ Date Of Pronouncement : 27/08/2021 आदेश/ Order Per Vikas Awasthy, J.M: This Appeal By The Assessee Is Directed Against The Order Of Commissioner Of Income Tax (Appeals)-37, Mumbai [Hereinafter Referred To As ‘The Cit(A)’] Dated 30.11.2019 For The Assessment Year (Ay) 2011-12. 2. Sh. N.R. Agarwal Appearing On Behalf Of The Assessee Narrating The Facts Of The Case Submitted, That The Assessee During The Period Relevant To Ay Under Appeal Had Sold An Immovable Property For A Consideration Of Rs. 1.60 Crores. After Deducting Index Cost Of Acquisition, Brokerage, Stamp Duty, Cost

…rent to be paid on the land and आअसं. 7645/मुं/2019 (िन.व.2011-12) does not add to the value of asset. The Tribunal in the case of ITO Vs. Wadhwa & Associates Realtors Pvt. Ltd. (supra) after following the decision in the case of CIT Vs. Khimline Pumps Ltd. 258 ITR 459 (Bom.) held that payment for acquiring lease hold land is capital expenditure. The AO after having accepted initial instalment of lease rent as capital has erred in rejecting subsequent instalments not being in the nature of capital expenditure. The assessee has constructed building on lease hold land. The lease of the land was allowed to the ass…

ITO (TDS) 1(2)(2), MUMBAI vs. ENAM FINANCIAL CONSULTANTS P.LTD, MUMBAI

In the result, both the appeals of the Revenue are dismissed

Bench: Shri G.S.Pannu & Shri C.N.Prasad

…yment and it is not revenue in nature. The ld.CIT(A) further relied on the decision of Hon'ble Bombay High Court in the case of Commissioner of Income tax v. Khimline Pumps Ltd. (A.Ys 2010-11 and 2011-12 resply.) M/s Enam Financial Consultants Pvt. Ltd (2002) 258 ITR 459 wherein it was held that amount of Rs.45 lacs paid by the assessee to M/s. APVE Ltd. for acquisition of leasehold land was a capital expenditure. The ld.CIT(A) also referred to the decision of Special Bench of ITAT in the case of Mukund Ltd. 106 ITR 231 wherein it was held that the premium paid for acquiring leasehold right in land was a capital…

ACIT (TDS) 1(2), MUMBAI vs. ESSEL INFRA PORJECTS LTD, MUMBAI

In the result, appeal of the Revenue is dismissed

Bench: Shri D. Karunakara Rao & Shri Pawan Singh

…built up area. The decision of the Tribunal in the case of National Stock Exchange (supra) and Mukund Ltd (supra) have been well discussed by the Ld CIT (A) in his order. The decision of the Hon‟ble jurisdictional High Court in the case of Khimline Pumps Ltd 258 ITR 459 (Bom) squarely and directly apply on the facts of the case wherein the Hon‟ble jurisdictional High Court has held that payment for acquiring leasehold land is a capital expenditure. Considering the entire facts in totality in the light of the judicial decisions vis-a-vis provisions of section 194-I, definition of rent as provided under the said p…

ITO (TDS) 1(2)(2), MUMBAI vs. ENAM FINANCIAL CONSULTANTS P. LTD, MUMBAI

In the result, appeal of the revenue is dismissed

Bench: Shri Cn Prasad & Shri Ashwani Taneja: (A.Y : 2009-10) Ito (Tds) 1(2)(2) Vs. M/S Enam Financial R.No.812 K.G. Mittal Hospital Bldg., Consultants Pvt. Ltd. Charni Road 44, 2Nd Floor, Khatau Mumbai – 400 002 Building, Sahid Bhagat Singh Road, Fort, Bank Street Mumbai – 400 023 Pan : Aaace1052H (अपीलार्थी / Appellant) (प्रत्यर्थी / Respondent) अपीलार्थी की ओर से / Appellant By : Mrs Beena Santosh प्रत्यर्थी की ओर से Respondent By : Shri Manish D Desai सुनवाई की तारीख / Date Of Hearing : 16/02/2017 घोषणा की तारीख Date Of Pronouncement : 22/02/2017

…1/M/12 CO 12 to 15/M/13 payment has all the characteristics of a capital payment and it is not revenue in nature. The ld.CIT(A) further relied on the decision of Hon'ble Bombay High Court in the case of Commissioner of Income tax v. Khimline Pumps Ltd. (2002) 258 ITR 459 wherein it was held that amount of Rs.45 lacs paid by the assessee to M/s. APVE Ltd. for acquisition of leasehold land was a capital expenditure. The ld.CIT(A) also referred to the decision of Special Bench of ITAT in the case of Mukund Ltd. 106 ITR 231 wherein it was held that the premium paid for acquiring leasehold right in land was a capital…

IT (TDS) 3(3), MUMBAI vs. SONATA REALTY P.LTD, MUMBAI

In the result, appeal of the Revenue is dismissed

Bench: Shri D. Karunakara Rao & Shri Ram Lal Negi

…built up area. The decision of the Tribunal in the case of National Stock Exchange (supra) and Mukund Ltd (supra) have been well discussed by the Ld CIT (A) in his order. The decision of the Hon‟ble jurisdictional High Court in the case of Khimline Pumps Ltd 258 ITR 459 (Bom) squarely and directly apply on the facts of the case wherein the Hon‟ble jurisdictional High Court has held that payment for acquiring leasehold land is a capital expenditure. Considering the entire facts in totality in the light of the judicial decisions vis-a-vis provisions of section 194-I, definition of rent as provided under the said p…

IT (TDS) 3(3), MUMBAI vs. SKYLINE CONSTRUCTION COMPANY LTD, MUMBAI

In the result, appeal of the Revenue is dismissed

Bench: Shri D. Karunakara Rao & Shri Ram Lal Negi

…built up area. The decision of the Tribunal in the case of National Stock Exchange (supra) and Mukund Ltd (supra) have been well discussed by the Ld CIT (A) in his order. The decision of the Hon‟ble jurisdictional High Court in the case of Khimline Pumps Ltd 258 ITR 459 (Bom) squarely and directly apply on the facts of the case wherein the Hon‟ble jurisdictional High Court has held that payment for acquiring leasehold land is a capital expenditure. Considering the entire facts in totality in the light of the judicial decisions vis-a-vis provisions of section 194-I, definition of rent as provided under the said p…

ITO (TDS) RG 2(2), MUMBAI vs. KAMDHENU BUILDERS & DEVELOPERS, NAVI MUMBAI

In the result, both appeals filed by the department are dismissed

Bench: Shri B R Baskaran & Shri Amit Shukla

…uilders & Developers ITA No. : 2397/Mum/2013 ITA No. : 2399/Mum/2013 Sr.N. Case Law Citation/ITA No. 1 ITO(TDS) v. Wadhwa & Associates Realtors (P) Ltd. 146 ITD 694(Mum) 2 ITO(TDS) v. Navi Mumbai SEZ(P) Ltd. 147 ITD 261(Mum) 3 CIT v. Khimline Pumps Ltd.[2012] 258 ITR 459 (Bom) 4 ITO(TDS) v. Kantadevi Chaudhary, ‘A’ Bench Order ITA 624/M/2014 Dated 02.07.2015 5 ITO(TDS) v. Keystone Lifespaces Pvt Ltd-‘A’ Bench ITAs 2088 & 2089 Order dated 16.03.2016 /Mum/2014 5. After considering the relevant finding given in the impugned order as well as various decisions of the Tribunal, we agree that, now this issue stands cove…

ITO (TDS) RG 2(2), MUMBAI vs. KAMDHENU BUILDERS & DEVELOPERS, NAVI MUMBAI

In the result, both appeals filed by the department are dismissed

Bench: Shri B R Baskaran & Shri Amit Shukla

…uilders & Developers ITA No. : 2397/Mum/2013 ITA No. : 2399/Mum/2013 Sr.N. Case Law Citation/ITA No. 1 ITO(TDS) v. Wadhwa & Associates Realtors (P) Ltd. 146 ITD 694(Mum) 2 ITO(TDS) v. Navi Mumbai SEZ(P) Ltd. 147 ITD 261(Mum) 3 CIT v. Khimline Pumps Ltd.[2012] 258 ITR 459 (Bom) 4 ITO(TDS) v. Kantadevi Chaudhary, ‘A’ Bench Order ITA 624/M/2014 Dated 02.07.2015 5 ITO(TDS) v. Keystone Lifespaces Pvt Ltd-‘A’ Bench ITAs 2088 & 2089 Order dated 16.03.2016 /Mum/2014 5. After considering the relevant finding given in the impugned order as well as various decisions of the Tribunal, we agree that, now this issue stands cove…

YOGESH SUNDERLAL SHAH,MUMBAI vs. DCIT 24(1), MUMBAI

In the result, the assessee’s appeal is allowed

Bench: Shri Sanjay Arora, Am & Shri Amarjit Singh, Jm आयकर अपील सं./I.T.A. No. 6093/Mum/2014 ("नधा"रण वष" / Assessment Year: 2008-09) Yogesh Sunderlal Shah, Dy. Cit-24(1), F/107, Shreepal Industrial Estate, C/13, Pratyakshkar Bhavan, बनाम/ New Oshivara Bridge, Bkc, Bandra (E), Mumbai-400 051 Vs. S. V. Road, Jogeshwari (W), Mumbai-400 102 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aakps 2779 L (अपीलाथ" /Appellant) (""यथ" / Respondent) : अपीलाथ" क" ओर से / Appellant By : Shri K. Gopal, Adv. ""यथ" क" ओर से/Respondent By : Shri Airiju Jaikaran सुनवाई क" तार"ख / : 22.6.2016 Date Of Hearing घोषणा क" तार"ख / : 30.6.2016 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: This Is An Appeal By The Assessee Directed Against The Order By The Commissioner Of Income Tax (Appeals)-34, Mumbai (‘Cit(A)’ For Short) Dated 06.8.2014, Confirming The Levy Of Penalty U/S. 271(1)(C) Of The Income Tax Act, 1961 (‘The Act’ Hereinafter) For The Assessment Year (A.Y.) 2008-09 Vide Order Dated 29.4.213. 2. The Issue In The Instant Appeal Is The Sustainability Or Otherwise In Law Of The Penalty U/S. 271(1)(C) Of The Act, I.E., In The Given Facts & Circumstances Of The Case.

…r wide, has its limits implicit therein, i.e., would not extent to include a case where a person holds tenancy rights, even if for an extended period, and which is otherwise liable to be considered as a capital asset (refer: CIT vs. Khimline Pumps Ltd. [2002] 258 ITR 459 (Bom); Cadell Wearing Mill Co. Ltd. vs. UOI [2001] 249 ITR 265 (Bom)). Further, that the extended meaning of the word ‘owner’ would not include a deemed owner, so that reference by the assessee to the provisions of section 27(iiib) and section 269UA(f) was, in its view, of no moment. Reliance stands placed by it on the decisions in the case of CI…

ITO (TDS) 2(5), MUMBAI vs. PYRAMID PROPERTIES, NAVI MUMBAI

The appeal of the Revenue is dismissed

Bench: Shri Joginder Singh & Shri Rajendraassessment Year-2011-12 Ito(Tds)-2(5), M/S Pyramid Properties, R. No.706, 7Th Floor, Plot No.Pap-R-24, बनाम/ Smt. K.G. Mittal Ayurvedic Ttc Industrial Area, Vs. Hospital Building, Midcrabale, Charni Road (W), Navi Mumbai-400701 Mumbai-400002 Pan No. Aalfp4402A (राज"व /Revenue) ("नधा"रती /Assessee)

…xplained that lease premium cannot be quoted to rent as defined u/s 194 I of the Act as it categorically distinguishes rent from lease premium. Reliance was placed upon the decision in CIT vs Panbari Tea Company 57 ITR 422 (SC), CIT vs Khimline Pumps Ltd. 258 ITR 459 (Bom.) and JCIT vs Mukund Limited (106 ITD 231) (Tribunal). The Ld. Commissioner of Income Tax (Appeal) considering the decision of the Tribunal in case of M/s Shah Group Builders Ltd. (ITA No.4523/Mum/2012) dated 14/08/2013, deleted the addition. 2.3. The Revenue is aggrieved and is in appeal before this Tribunal. We find that the Tribunal…

ITO TDS 2(2), MUMBAI vs. KEYSTONE LIFESPACES P.LTD, NAVI MUMBAI

…other cases and has been decided by the Tribunal in favour of the assessee and against the AO. He referred to the cases of CIDCO(ITA/2985/M/2012 dated 8.8.2012),M/s. Wadhwa & Associates Realtors Pvt. Ltd.(ITA/695/Mum/2012-dated 3.7.20130;Khimline Pumps Ltd. (258 ITR 459); Mukund Ltd.(106ITD231);Navi Mumbai Sez P.Ltd.(dt.16.8.2013 ITA/738 to741/Mum/2012); Krishak Bharati Co-operative Limited vs. DCIT(ITANo.205/2010 dt.12.7. 2012);Bharat Petroleum Corporation Ltd. (ITA No.4985/Mum/2013 dt.29.10.2014).;Oriental Bank of Commerce(ITA No.1300/1301/Mum/2014 dated 23.11.2015). 5.We find that in the case of Oriental Bank…

ITO (TDS) 2(5), MUMBAI vs. ORIENTAL BANK OF COMMERCE, MUMBAI

The appeals of the Revenue are dismissed

Bench: Shri Joginder Singh & Shri Jason P. Boaz

…idered for 71 years of lease period on a proportionate basis; the Dept rejected the claim of the assessee which was upheld by the Hon’ble High Court 11 Oriental Bank of Commerce ITA No.1300 & 1301/Mum/2014 of Bombay in the case of CIT V/s Khimline Pumps Ltd [258 ITR 459 (Bom)(2002). 4. Assessee firm had acquired a plot of lease for 30 years and it had to pay premium in 12 installments and also 5% of such premium annually as ground rent. The assessee paid the installments of the aforesaid premium in the relevant years and claimed the same as deductable revenue expenditure. The revenue took a view that the paymen…

DAYAL TAHILRAM PARWANI,MUMBAI vs. ADDL CIT 19(3), MUMBAI

In the result, the assessee’s appeal is allowed the Revenue’s appeal is dismissed

Bench: Shri D. Manmohan, Vp & Shri Sanjay Arora, Am आयकर अपील सं./I.T.A. No. 3194/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) Dy. Cit-19(3), Dayal Tahilram Parwani बनाम/ Room No. 305, 3Rd Floor, 4Th Floor, Brijbala Building, 21St Road, Bandra (W), Piramal Chambers, Parel, Vs. Mumbai-400 012 Mumbai-400 050 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aacpp 6013 C (राज"व /Revenue) ("नधा"रती/Assessee) : & आयकर अपील सं./I.T.A. No. 3545/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) बनाम/ Dayal Tahilram Parwani Dy. Cit-19(3), Mumbai-400 050 Mumbai-400 012 Vs. ("नधा"रती/Assessee) (राज"व /Revenue) : राज"व क" ओर से/Revenue By : Shri Jasbir S. Chauhanlove Kumar "नधा"रती क" ओर से / Assessee By : Shri Sanjay R. Parikh सुनवाई क" तार"ख / : 18.09.2015 Date Of Hearing घोषणा क" तार"ख / : 09.10.2015 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: These Are The Cross Appeals, I.E., By The Assessee & Revenue, Arising Out Of The Order By The Commissioner Of Income Tax (Appeals)-30, Mumbai (‘Cit(A)’ For Short) Dated 26-2-2013, Partly Allowing The Assessee’S Appeal Contesting Its Assessment U/S.143(3) Of The Income Tax Act, 1961 (The ‘Act’ Hereinafter) For The Assessment Year (Ay) 2009-10 Vide Order Dated 26-12-2011. 2

…uding rights therein, and Building or the superstructure thereon, are two separate and distinct assets under the Act. The lease-hold rights represent capital expenditure, even as held by the Hon’ble High Court in the case of CIT vs. Khimline Pumps Ltd. [2002] 258 ITR 459 (Bom). As such, even where transacted under one transfer agreement, in-as-much as it is only a single composite commercial asset that 4 ITA Nos. 3194/Mum/2013 & 3545/Mum/2013 (A.Y. 2009-10) Dayal Tahilram Parwani is being acquired by the transferee, these would constitute transfers of two separate capital assets under the Act. The law in the matt…

DCIT 19(3), MUMBAI vs. DAYAL TAHILRAM PARWANIAN ENTERPRISES, MUMBAI

In the result, the assessee’s appeal is allowed the Revenue’s appeal is dismissed

Bench: Shri D. Manmohan, Vp & Shri Sanjay Arora, Am आयकर अपील सं./I.T.A. No. 3194/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) Dy. Cit-19(3), Dayal Tahilram Parwani बनाम/ Room No. 305, 3Rd Floor, 4Th Floor, Brijbala Building, 21St Road, Bandra (W), Piramal Chambers, Parel, Vs. Mumbai-400 012 Mumbai-400 050 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aacpp 6013 C (राज"व /Revenue) ("नधा"रती/Assessee) : & आयकर अपील सं./I.T.A. No. 3545/Mum/2013 ("नधा"रण वष" / Assessment Year: 2009-10) बनाम/ Dayal Tahilram Parwani Dy. Cit-19(3), Mumbai-400 050 Mumbai-400 012 Vs. ("नधा"रती/Assessee) (राज"व /Revenue) : राज"व क" ओर से/Revenue By : Shri Jasbir S. Chauhanlove Kumar "नधा"रती क" ओर से / Assessee By : Shri Sanjay R. Parikh सुनवाई क" तार"ख / : 18.09.2015 Date Of Hearing घोषणा क" तार"ख / : 09.10.2015 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: These Are The Cross Appeals, I.E., By The Assessee & Revenue, Arising Out Of The Order By The Commissioner Of Income Tax (Appeals)-30, Mumbai (‘Cit(A)’ For Short) Dated 26-2-2013, Partly Allowing The Assessee’S Appeal Contesting Its Assessment U/S.143(3) Of The Income Tax Act, 1961 (The ‘Act’ Hereinafter) For The Assessment Year (Ay) 2009-10 Vide Order Dated 26-12-2011. 2

…uding rights therein, and Building or the superstructure thereon, are two separate and distinct assets under the Act. The lease-hold rights represent capital expenditure, even as held by the Hon’ble High Court in the case of CIT vs. Khimline Pumps Ltd. [2002] 258 ITR 459 (Bom). As such, even where transacted under one transfer agreement, in-as-much as it is only a single composite commercial asset that 4 ITA Nos. 3194/Mum/2013 & 3545/Mum/2013 (A.Y. 2009-10) Dayal Tahilram Parwani is being acquired by the transferee, these would constitute transfers of two separate capital assets under the Act. The law in the matt…