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Issues Involved:
1. Whether the agreement between NDMC and the assessee was a lease or a licence. 2. Whether the agreements between the assessee and the sub-licensees were leases or sub-licences. 3. Whether the deposits received by the assessee from sub-licensees were trading receipts and assessable as revenue receipts. 4. Whether the levy of interest u/s 217 was justified. Issue 1: Lease or Licence Agreement between NDMC and Assessee The Tribunal held that the agreement between NDMC and the assessee was a licence and not a lease. The terms and conditions of the agreement indicated that the intention was not to transfer interest in the land to the assessee. The agreement included clauses that the land and building would vest in NDMC and the agreement would be subject to termination upon breach of terms. The Tribunal relied on the principles laid down by the Supreme Court in similar cases and the decision of the Delhi High Court in the case of C.J. International Hotels Ltd., which had similar terms with NDMC. Issue 2: Lease or Sub-Licence Agreements between Assessee and Sub-Licensees The Tribunal concluded that the agreements between the assessee and the sub-licensees were sub-licences and not leases. The terms of the sub-licence agreements were consistent with the terms of the original licence agreement between NDMC and the assessee. The sub-licensees did not acquire any interest in the property, and the agreements were structured to maintain the relationship of sub-licensor and sub-licensee without transferring ownership rights. Issue 3: Nature of Deposits Received from Sub-Licensees The Tribunal held that the deposits received by the assessee from the sub-licensees were not trading receipts and therefore not assessable as revenue receipts. These deposits were refundable upon termination or determination of the sub-licence agreements and constituted a debt. The Tribunal distinguished the case from the Bombay High Court decision in Shree Nirmal Commercial Ltd., where the deposits were non-refundable. The Tribunal also noted that the benefit derived by the assessee from the interest-free deposits was already reflected in the business income and did not warrant separate taxation. Issue 4: Levy of Interest u/s 217 The Tribunal deleted the interest levied u/s 217, holding that the assessee was not liable to pay advance tax based on the last assessed income, which was negative. The Tribunal relied on the Bombay High Court decision in Patel Aluminium (P.) Ltd., which held that there was no obligation to send a statement of advance tax if no advance tax was payable based on the last assessed income. Conclusion: The Tribunal allowed the appeal of the assessee, deleting the addition of Rs. 10,28,98,450 and the interest u/s 217.
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