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TMI Blog2014 (9) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... not those income which are in relation to the eligible activity - it includes Processing fees, Misc. receipt, Interest money & premium forfeiture, Use & occupation charges, Rent received, time extension fee, Interest on FDR, sub Letting charges, Interest on sewerage charges, sales of application forms/TEF etc, rent received on Flattered factory etc. - The deduction u/s 80IA has been claimed by the assessee in respect of developing infrastructure facility as per sub section (4) of section 80IA - it cannot be said that these receipts are derived from the activity of the assessee company regarding development of infrastructure facility - At the best, it can be said that these receipts are in relation to this activity of the assessee company but it cannot be accepted that these receipts are derived from this activity of the assessee company regarding development of infrastructure facility - Therefore, these receipts are not eligible for deduction u/s 80IA – the order of the CIT(A) is upheld – Decided against assessee. Prior paid expenses – Water charges paid – Held that:- CIT(A) rightly held that the interest income had accrued to the assessee in earlier years and had also been off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re similar - the assessee is not eligible for deduction u/s 36(1)(viii) of the Act – Decided against assessee. - ITA No. 448/LKW/2012 - - - Dated:- 5-9-2014 - Shri Sunil Kumar Yadav And Shri A. K. Garodia,JJ. For the Appellant : Shri S. K. Garg, Advocate For the Respondent : Shri Manoj Kumar Gupta, CIT, D. R. ORDER Per A. K. Garodia, A.M. This is an assessee's appeal directed against the order passed by learned CIT(A)-I, Kanpur dated 27/03/2012 for the assessment year 2007- 2008. 2. Ground No. 1 2 are inter connected, which read as under: 1. BECAUSE the CIT(A) has erred in law and on facts in holding that there is no legal requirement that before issuing notice under Clause (ii) of section 143(2), it was incumbent upon the Assessing Officer to form reason to believe or to record such reasons in writing and in upholding the validity of notice issued under section 143(2) and thereby that of the assessment order dated 31,12.2009 (passed in pursuance of the said notice). 2. BECAUSE the view taken by the CIT(A) in the matter of issuance and service of notice under section 143(2), is based on misconception /non-appreciation of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust because it was not issued with reference to a pending return ? (c) Whether on the facts and in the circumstances of the case the learned Income-tax Appellate Tribunal was justified in holding that non-issuance of notice under section 143(2) of the Act has vitiated the assessment order and ignoring that issuance of such notice is a machinery provision and does not go to the root of the assessment, more so when the assessee was afforded and he availed of full opportunity ? (d) Whether notice under section 143(2) of the Act is a machinery provision and as per the wording of section 148(1) 'so far as may be' provisions of section 143(2) with reference to reassessment proceedings under section 148 need not be applied into but only to the extent possible? (e) Whether the assessee has discharged his onus by furnishing the name, confirmation letter, copy of the NRE bank account and passport of the NRI donor even though the identity of the donor could not be established what to talk about proving his creditworthiness and the genuineness of the transaction ? 5.1.1 In this case, it was held that issuance of notice u/s 143(2) is mandatory and omission on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also held that the Commissioner cannot permit his judgment to be influenced by matters not disclosed to the assessee. In the present case, the facts are totally different. Nothing has been brought on record by the Learned A.R. of the assessee that any dispute was raised or could have been raised before the Assessing Officer justifying non selection of the assessee's case for scrutiny and therefore, this judgment is not applicable. 5.4 The next judgment cited by Learned A.R. of the assessee is the judgment of Hon'ble Calcutta High Court rendered in the case Eastern Scales (Pvt.) Ltd. (supra). In that case, the issue in dispute was the rectification order passed by the Assessing Officer u/s 154 of the Act according to the direction of the Addl. CIT and under these facts, it was held that the Income Tax Officer had to act judicially or quasi-judicially in the assessment proceedings and any direction by any higher authority as to the manner in which such proceedings are to be disposed of would be interference with the judicial or quasi-judicial functions of the Income Tax Officer. In the present case, it is not the case of the assessee that the Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a judicial or a quasi judicial authority. In the present case, the facts are different. In the present case, this is not the case of the assessee that any superior authority has controlled the action of the Assessing Officer. The Assessing Officer selected the case on his own although he took the help of computer and therefore, this judgment is also not rendering any help to the assessee in the present case. 5.8 The next judgment cited by Learned A.R. of the assessee is the judgment of Hon'ble Apex Court rendered in the case of Sheo Shanker Sitaram (supra). In this case, it was the decision of Hon'ble Apex Court that an officer or authority upon whom jurisdiction has been conferred to make an order judicially has to act independently. In the present case, this is not the case of the assessee that the Assessing Officer has not acted independently and therefore, in our considered opinion, this judgment is also not rendering any help to the assessee in the present case. 6. As per the above discussion, we have seen that none of the judgments is rendering any help to the assessee. We have also seen that the case was selected for scrutiny by Assessing Officer although he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rutiny. Inspite of such guidelines, the ultimate decision is of the Assessing Officer that a particular case is falling in such guideline and in this process, if the Assessing Officer is taking help of computer in analyzing data disclosed by the tax payer in the return of income then it cannot be said that the decision for selecting the case for scrutiny is not independent decision of the Assessing Officer. This is not the case of the assessee that there is any specific direction of any higher authority to select the case of this particular assessee for scrutiny. The guideline may be this as to what should be percentage of the cases to be selected for scrutiny in several different type of tax payers. The guidelie may be that where search or survey has taken place, the number of cases to be selected should be high in percentage. Similarly, the guideline may be that if the assessee is claiming exemption/deduction of certain amount then also the percentage may be higher compared to those assessees who are not claiming any exemption/deduction. Such guidelines formed by the Department as a whole in general manner for the assessees all over the country, it cannot be said that such guidel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions made to the effect that premia had been realized for leasing out the industrial sites/plots to the entrepreneurs for a specified period, whereas UPSIDC continued to retain its ownership over the same. The premia realized is refundable on the maturity of the agreement. In case there is a premature termination of the agreement, then too premia is refundable. Thus, it is like earnest money and no part of the same can be subjected to assessment. The said submission appears in paras 3, 4, 5, 6 and 7 of the written submissions filed before the Ld. CIT(A), copy appears at pages 135 to 145 and this issue has been discussed on pages 136 and 137 of the PB, which are specifically referred to and relied upon. 9. In view of the factual matrix as contained in paras 3, 4, 5, 6 7 of the written submissions (pages 136 and 137 of the paper book, supra) it is prayed that the matter be reconsidered and the principles of res-judicata should not be held to be applicable in view of the principles laid down by the Hon'ble Supreme Court in the case of CIT vs. Brij Lal Lohia Mahabir Prasad Khemka reported in (1972) 84 ITR 273, wherein their lordships have observed and held as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round nos.4 5 6): The Assessing Officer has discussed this issue on page 5, from which it would be seen that the disallowance has been made as per provisions contained in section 40A(7) of the Act which reads as under:- (7) (a) Subject to the provisions of clause (b), no deduction shall be allowed in respect of any provision (whether called as such or by any other name) made by the assessee for the payment of gratuity to his employees on their retirement or on termination of their employment for any reason. (b) Nothing in clause (a) shall apply in relation to any provision made by the assessee for the purpose of payment of a sum by way of any contribution towards an approved gratuity fund, or for the purpose of payment of any gratuity, that has become payable during the previous year. Explanation - For the removal of doubts, it is hereby declared that where any provision made by the assessee for the payment of gratuity to his employees on their retirement or termination of their employment for any reason has been allowed as a deduction in computing the income of the assessee for any assessment year, any such paid out of such provision by way of contribution towards an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Supreme Court in the case of Union of India Anr. vs. A. Sanyasi Rao and others reported in (1996) 219 ITR 330 rendered in the context of provisions of section 44AC. b) In any case the payment in question should be treated as expenditure simplicitor (other than the expenses incurred on payment of gratuity) incurred by the appellant during the course of carrying on of business, in its capacity as businessman. Such payments, even if made voluntarily, deserve to be allowed as deduction as per the principles laid down by the Hon'ble Apex Court in the case of Sassoon J. David and Co. Pvt. Ltd. Vs. CIT reported in (1979) 118 ITR 261, wherein at page 273 their lordships have observed and held as under:- In order to claim deduction under s.no(2)(xv) of the Act, an assessee has to shoe that the expenditure in question, (i) was not an allowance of the nature described in any of the els. (i) to (xiv) of s. 10(2), (ii) was not in the nature of a capital expenditure or personal expenses of the assessee and (iii) had been laid out or expended wholly and exclusively for the purposes of his business, profession or vocation. Even assuming that the motive behind the paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) has erred in law and on facts in holding that receipts classified under the head interest by the three units covered by the provisions of section 80IA of the Act, as per particulars given herein below:- Sl. Name of the project Receipts classified No. under the head interest (Rs.) (i) Tronica City Industrial Model Town 11,78,51,405 (ii) Export promotion industrial park, Greater Noida 4,24,92,416 (iii) Agra Export Promotion Industrial Park 39,75,286 could not be treated as income derived from eligible business and in directing the Assessing Officer to exclude the same from computation of eligible profit. 8. BECAUSE the receipts classified under the head interest represented the income earned by and derived from the activities carried on by the appellant through the said eligible units and the same being forming integral part of the income from business derived from such units, qualify fully for deduction under section 80IA. 9. BECAUSE th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm had not been filed along with the return. Thus, the entire claim of ₹ 21,23,81,785/- under section 80IA had been disallowed at the assessment stage. 18. The assessee/ appellant felt aggrieved by such an 'exclusion' (from the computation of eligible profit) and took the matter in 1st appeal before the Id. CIT(A). The Id. CIT(A) agreed with the contention put forth by the appellant that mere late filing of audit report cannot be a ground for disallowance of deduction under section 80 IA of the Act and observation part of the appellate order is reproduced hereunder: 6.2 I agree with the contention of the Ld. A.R. that late filing of the audit report in form No.10CCB could not be a reason to deny the benefits u/s 801A of the Act. Reference is made to the decisions of various Hon'ble High Court this regard: 1. 209 ITR 63 (Bombay) 2. 292ITR147(MP) 3. 219 ITR 721 (Guj) 4. 262 ITR 10 (Cat) 5. 317 ITR 207 (Kar) 19. As regards disallowance of deduction under section 80IA aggregating to ₹ 8,54,09,491/- represented by the aggregate of 'other income', Ld. CIT(A) following his order passed for earlier assessment years allowed the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,92,416/- by Greater Noida and ₹ 39,75,286/- by Agra. This issue has been dealt with at great length in the assessee's own case in the appellate proceedings for earlier years wherein while passing an enhancement order, it was held by the Ld. CIT(A) that such interest income was not income derived from the eligible business of developing and operating or maintaining and operating a notified Industrial Park. In those orders, the Ld. CIT(A) had, however, allowed certain items of income (which had not been considered by the AO) to be considered as income derived from the eligible business. As the nature of the income remains the same in this year too, the AO is directed to follow my directions/findings given in my appellate orders for A.Y. 2005-06 2006-07 on this issue. Before parting with the issue, I hereby direct the A.O. to consider the 5% premium (corresponding to these three industrial parks) which was added by the AO to the income of the assessee and which has been confirmed by me at ground No.l 2 of this order as income derived from the eligible business and to consider the same for deduction u/s 80IA of the Act 2.1 It is stated that true effect of the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 25,000) which includes ₹ 2,000 towards earnest money in respect of the above plot latest by 11/11/2002. This amount (together with Registration Fee/Earnest money) is approximately equal to 25.00 percent of the total premium of the plot at the provisional rate of ₹ 700.00 per sq. mtr. and location charges @ ₹ 0.00 per sq. mtr. for first five acres and is subject to adjustment according to actual measurement of the plot. If the above amount falls short of the amount equal to 25.00 percentage of the total premium according to actual measurement, the balance will be deposited by you within seven days of the receipt of demand from us. If the payments are not made as stipulated above this allotment will stand automatically cancelled/and the whole amount of Earnest Money deposited by you will stand forfeited to this Corporation, even if the area of the plot either exceeds or is less than the area applied for to the extent of 20% or less of the area applied for. However, if the area of the land allotted either exceeds the area applied for or falls short of the area applied for by an area more than 20% of it, the Earnest Money will not be forfeited if this allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the letter of allotment) has been allowed to be paid in installments, with a stipulation to carry interest and also of rebate for timely payment of such installments. Clause (1) of such lease agreement is being reproduced:- 1. In consideration of the payment by the Lessee of the provisional premium ofRs.5,85,000/- (Rs. Five Lacs eighty five thousand only) the receipt whereof the Lessor hereby acknowledges and of the outstanding amount of provisional premium of Rs. --- to be paid in ten half yearly installments as follows along with interest @---% per annum on the total outstanding premium. 1. Rs. ---- on the 1st day of July ----- 2. Rs. ---- on the 1st day of January ----- 3. Rs. ----- on the 1st day of July ---- 4. Rs. ---- on the 1st day of January ----- 5. Rs. --- on the 1st day of July ----- 6. Rs. ---- on the 1st day of January ----- 7. Rs. ----- on the 1st day of July ---- 8. Rs. ---- on the 1st day of January ----- 9. Rs. ---- on the 1st day of July ----- 10.Rs. ---- on the 1st day of January ----- Provided that if the Lessee pays the installments and the interest on the due date and there are no over dues, a rebate will be admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit/duty drawback receipts owe their origin to the incentive schemes formulated by the Government of India and not to the export business as such. Thus incentive scheme being constituting the first degree source and not the 'exports', the benefit admissible under section 80 HHC was not admissible with reference to the receipts under the head DEPB audit/duty drawn back receipts. Kind attention of your honour is invited to the discussion appearing on pages 232, 233 and 234 of the said report, which for the sake of instant reference is reproduced hereunder:- Analyzing Chapter VI-A, we find that section 80-IB/80-IA are a code by themselves as they contain both substantive as well as procedural provisions. Therefore, we need to examine what these provisions prescribe for 'computation of profits of the eligible business.' It is evident that section 80-IB provides for allowing of deduction in respect of profits and gains derived from the eligible business. The words derived from are narrower in connotation as compared to the words 'attributable to'. In other words, by using the expression 'derived from', Parliament intended to cover sources not bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial undertaking, which becomes eligible on satisfying sub-section (2), would be entitled to deduction under sub-section (1) only to the extent of profits derived from such industrial undertaking after specified date (s). Hence, apart from eligibility, sub-section (I) purports to restrict the quantum of deduction to a specified percentage of profits. This is the importance of the words derived from industrial undertaking as against profits attributable to industrial undertaking . DEPB is an incentive. It is given under the Duty Exemption Remission Scheme. Essentially, it is an export incentive. No doubt, the object behind DEPB is to neutralize the incidence of customs duty payment on the import content of export produce. This neutralization is provided for by credit to customs duty against export product. Under DEPB, an exporter may apply for credit as a percentage of the FIB value of exports made in freely convertible currency. Credit is available only against the export produce and at rates specified by the DGFT for import of raw materials, components, etc. DEPB credit under the Scheme has to be calculated by taking into account the deemed import content of the export pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace value thereof, constituted separate source of income and assessable as profits of business, wholly unconnected with export business under clause (iiid) of section 28 of the Act. Consequently, it was further held that profits realized on sale of DEPB, as arrived at after adjustment of face value of DEPB benefit of section 80HHC shall be denied. In short, the view taken by Special Bench of the Hon'ble ITAT (SB) was that face value of DEPB is the Income from Export business as per clause (iiib) of section 28 eligible for benefit under section 80 HHC and any surplus arising therefrom on sale of DEPB is the income from trading in DEPB taxable as independent source of income, wholly unconnected with the export business, under claim (iiid) of the Act. Relevant Para from the said judgment of Special Bench is reproduced hereunder:- Rationale behind section 28(iiid) and (iiie): It is noticed above that export incentive is provided by way of the face value of DEPB. It is this value, which has relation with the export business. The subsequent sale of DEPB is a step divorced from export. The relation between the act of exporting goods and DEPB exists only upto the stage of its ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Vs. Kalpataru Colours and Chemicals. In terms of the said judgment, the decision of Hon'ble Special Bench of the ITAT, Bombay was reversed. Relevant passage from the said judgment is reproduced hereunder:- The submission that prior to the insertion of clause (Hid) in section 28, the face value of the DEPB credit realized on the transfer of such credit constituted export profits, but not the amount realized in excess of the face value of the DEPB is similarly without any basis. This is because (i) the object of the DEPB was to furnish an incentive to exporters so as to adjust the credit against the customs duty payable on any goods imported into India. However, where an exporter instead of utilizing the credit transfers the credit at a premium, it cannot be said that the exporter has utilized the credit; (ii) the Legislature considers that the customs duty and excise duty paid on raw materials used in the export product, when repaid or repayable as duty drawback, would not constitute export profit. Similarly, when the DEPB credit is not utilized in the business but is transferred for value, the amount received on the transfer would be business profits and not export profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in excess of the face value of the DEPB. For all these reasons, we have come to the conclusion that the view of the Tribunal on the two questions of law formulated by the Revenue is unsustainable. In the circumstances, we allow the appeal by answering the first question of law as formulated in the negative. (emphasis added) 31. Thereafter, Topman Exports and other assessees' who were affected by the said judgment of Hon'ble Bombay High Court in the case of Kalpataru Colours and Chemicals (Supra) took the matter before the Hon'ble Supreme Court. The lead case was that of Topman Exports. The issue involved was, in the context of relief under section 80 HHC, as to whether value of DEPB, Duty draw back and other export inventive, could be held to be the income derived from export business so as to be eligible for relief under section 80 HHC. The matter was decided by their lordships vide judgment and order dated 08.02.2012 [since reported in (2012) 342 ITR 49]. 32. In the later part of the said judgment, their lordships of the Hon'ble apex court referred to the arguments advanced by rival parties, as reproduced hereunder :- (a) Arguments from the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments advanced by the rival parties (as referred to above) the larger bench of the apex court (constituted by three Hon'ble judges) decided the issue vide judgment and order dated 08.02.2012 in the following manner :- Finding of the Hon'ble Apex Court: On a reading of the aforesaid paragraphs of the Hand Book on the DEPB and the Export and Import Policy of the Government of India, 1997-2002, it is clear that the objective of the DEPB Scheme is to neutralize the incidence of customs duty on the import content of the export products. Hence, it has direct nexus with the cost of the imports made by an exporter for manufacturing the export products. The neutralization of the cost of customs duty under the DEPB scheme, however, is by granting a duty credit against the export product and this credit can be utilized for paying customs duty on any item which is freely importable. DEPB is issued against the exports to the exporter and is transferable by the exporter. 34. That in consequence of the said finding, the judgment of the Hon'ble Bombay High Court in the case of Kalapataru (supra) was set-aside and the appeals were allowed. Thus, the judgment of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his orders for earlier assessment years wherein various case laws had been cited. The said case laws have duly been dealt with in paras 15,16,17,18,19 and 20 of the written submissions dated 26.03.2012 filed before the Id. CIT(A), copy appearing at pages 209 to 225 of the paper book, relevant passages appearing at pages 217 to 223 thereof. Further reliance is specifically placed on the submissions dated 26.03.2012 as made before the Id. CIT(A)-I, Kanpur during the course of hearing of appeal (copy appearing at pages 209 to 225 of the paper book). 18. Learned D.R. of the Revenue supported the orders of the authorities below. 19. We have considered the rival submissions. We find that it is settled position of law that for the purpose of allowing deduction u/s 80IA, only those income are to be considered which are derived from the eligible activity and not those income which are in relation to the eligible activity. As per the details brought on record by Learned A.R. of the assessee in Para 16 of the written submissions as reproduced above, it is seen that it includes Processing fees, Misc. receipt, Interest money premium forfeiture, Use occupation charges, Rent receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pages 135 to 145) as had been made before the Id. CIT(A) during the course of hearing, the same are reproduced hereunder:- 15. Ground No.7 (Adjustment relating to previous year - ₹ 90,12,342/-. The disallowance in question is made up mainly of the following items:- (Rs.) (i)Interest accrued written back 80,84,933 (ii)Water charges payable to Jal Sansthan 5,92,000 As regards (i) above, it is in the nature of 'bad debts' written off and as per the law of bad debts as amended with effect from 1.4.1989, it is admissible as deduction on the basis of write off . The point at issue is covered by the decision of Special Bench of Hon'ble ITAT in the case of Dy. CIT vs. Oman International Bank reported in 100 ITD 285. In the appellant's own case also, similar write-off had been allowed from the stage of the Hon'ble ITAT in the assessment year 2001-02. A copy of the order passed by the Hon'ble ITAT is enclosed. 16. Similarly, liability on account of payment of 'water charges,' arose in the year under appeal itself, as a result of demand created by Jal Sansthan, Kanpur. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year under reference, the impugned amount would stand allowed as deduction. 23.1 From the above paras from the order of CIT(A), we find that a clear finding is given by CIT(A) that the assessee has not established that it has written off alleged interest in the ledger account of the respective allottees. Before us also, no evidence has been brought on record to establish that this interest receivable having been accrued in the earlier year has been written off in the books of account. Regarding the second aspect of this matter i.e. water charges payable to Jal Sansthan, we find that CIT(A) has directed the Assessing Officer to verify the demand raised by Jal Sansthan and in case it is found that such demand was raised during the year under reference, the impugned amount would stand allowed as deduction. In view of these findings of CIT(A), which could not be controverted by Learned A.R. of the assessee, we do not find any infirmity in the order passed by learned CIT(A). These grounds are also rejected. 24. Ground No. 13 of the appeal is as under: 13. BECAUSE the CIT(A) after having accepted, that the provisions of section 14A read with Rule 8D were not applicable in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of authorities below. 27. We have considered the rival submissions. we find that the assessment year involved is 2007-08 whereas Rule 8D has been made applicable from next year i.e. assessment year 2008-09 and therefore, Rule 8D is not applicable. This issue was decided by CIT(A) as per Para 8.1 of his order which is reproduced below for the sake of ready reference: 8.1 Discussion/Decision: I have gone through the findings given by the A.O. and also the submissions made by the Ld. A.R. In view of the of the decision of the Hon'ble Bombay High Court in the case of Godrej Boyce Manufacturing Co. Ltd. vs DCIT (328 ITR 81), it has to be held that Rule 8D could not be invoked by the A.O. for the A.Y. 2007-08, however, there is no embargo on the A.O. in computing the disallowance under Sec. 14A on a reasonable and fair basis. This issue also came before the undersigned in the appeal proceedings for earlier years (in assessee's own case), wherein it was decided that a L.S. disallowance of ₹ 1 lac would meet the end of justice. Ordered accordingly. 27.1 We find that CIT(A) has confirmed the disallowance of ₹ 1 lac in line with his decision on this issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the paper book is a sample copy of lease deed executed by the assessee company in favour of allottees and in particular our attention was drawn to page No. 262 of the paper book and it was pointed out that as per the this, last installment is payable on 01/07/2009 and the lease deed is dated 27/12/2004. He submitted that hence it has to be accepted that total installments are to be paid by the allottees before completion of five years from the date of execution of lease deed and even if it is considered loan, the same is not long term loan or advance as required as per clause (h) of explanation to section 36(1)(viii) of the Act. He placed reliance on a judgment of Hon'ble Apex Court rendered in the case of 1 SCC 236. He also placed reliance on a Tribunal decision rendered in the case of Tamilnadu Power Finance Infrastructure Development Corpn. Ltd. vs. ACIT [2013] 143 ITD 147. 31. We have considered the rival submissions. We find that in a paper book of 381 pages submitted by the assessee, only one sample lease deed executed by the assessee in favour of the allottees is made available on page No. 260 to 272 of the paper book. This lease deed is dated 27/12/2004 and as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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