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TMI Blog2016 (8) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, this ground filed by the Revenue stands dismissed. - I.T.A. No.612/Del/2013, C.O. No.161/Del/2013 - - - Dated:- 21-7-2016 - G. D. AGRAWAL, HON BLE VICE PRESIDENT AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER For The Appellant : Shri T. Vasanthan, Sr. DR For The Respondent : Shri C S Agarwal, Sr. Adv., Shri R P Mall, Adv ORDER PER BEENA A. PILLAI, JM: The present cross appeals have been filed by the Revenue as well as the assessee against the order dated 30.11.2012 passed by Ld. CIT(A) XXX, New Delhi for the Assessment Year 2010-11 on the following grounds: A. I.T.A.No. 612/Del/2013 (Revenue s appeal): 1. On the facts and in the circumstances of the case as well as in law, the learned CIT(A) has erred in deciding that no amount as rent and interest has been paid by the assessee to NOIDA during F .Y. 2009-10. As per lease deed dated 24/03/2009 between the development and marketing of Group Housing Pocket/Flats indicates towards an Allotment Letter dated 19/01/2009. The said allotment letter clearly laid down the plan through which payment of premium installment and interest thereon has to be paid to NOIDA. The Ld CIT(A) has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprising of following three members whose share holding are detailed hereunder: S.No. Name of Members %tage of shareholding 1 M/s. Gardenia India Ltd. 80% 2 M/s. Advanced Construction Co. Pvt. Ltd. 10% 3 M/s. Amrapali Realtors 10% 3.2 It was engaged in the business of real estate development and construction during the financial year 2009-10 relevant to A.Y. 2010-11. 3.3 That in the immediately preceding assessment year 2009-10, the assessee was allotted a piece of land i.e. Plot No. 16A in Sector 61, Noida for development and marketing of group housing pockets/flats which had been acquired by NOIDA under the Land Acquisition Act' 1984. The aforesaid lease of plot had been allotted to the assessee for a period of ninety years for consideration of a premium of ₹ 15,81,84,900/- (see pages 26-27 of the Paper Book), out of which 20% of the premium i.e. ₹ 3,16,36,980/- was paid by the assessee before the allotment (see pages 45-46 of Pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 on 29.09.2013. The ITAT has also issued defect notice on 08.10.2013 to the assessee that Date of receipt of notice of appeal filed by the appellant to tribunal not properly mentioned. Hence time bared cannot be calculated . However, the assessee has not yet cured the defect. As the cross objection filed by the assessee is beyond time, the cross objections filed by the assessee may kindly be rejected in limine. 3. Without prejudice to the contention of the Department stated In para 2 above, the following objection is also raised by the Department. 3.1 Issue under consideration is whether under cross objection respondent assessee is allowed to agitate issues which are not subject matter of appeal against which cross objection has been filed. 3.2 If we allow interpretation that any issue can be raised under CO, than it comes exactly at par with cross appeal. There cannot be any doubt that such interpretation would make use of phrase 'cross objection' and provisions of separate section redundant. Time of filing appeal is 60 days communication of impugned order. Under this interpretation the time limit gets extended to much later period, that too without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment at the CIT(A) level and was not appealed against by the assessee U/S 253( 1). The fact that the cross objection were found to be filed beyond prescribed time and were withdrawn with the liberty to argue validity the assessment in departmental appeal on the strength of Rule 27 of ITAT Rules (being respondent), would not make much difference because although, the Hon'ble ITA T held that it is not possible to agitate validity of assessment on the strength of the Rule 27, however, it is important to note that the Hon'ble ITA T has ruled, ... Had the cross objection was not withdrawn, even then, such a legal issue was beyond the scope of the adjudication through a cross objection under section 253(4) of the IT Act because the impugned legal issue was altogether and independent as well as a separate issue. (emphasis supplied). B) Written submission for Departmental Appeal 1. In this connection, it is stated that Ld. CIT(A) erred in deciding that no TDS is applicable on amount paid by assessee to NOIDA as lease hold premium during the year. As per lease deed between NOIDA and M/s Gardenia Shelters Pvt. Ltd. provided by assessee during the assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A is chargeable to TDS. 4. The contention of the assessee and the Ld CIT(A) that TDS provisions are not applicable on the payments to NOIDA is not acceptable due to the following reasons: a) The NOIDA Authority is not covered u/s 196 of the IT Act, 1961 as the same is not specifically covered under any of the institutions specifically mentioned in the said section. b) The payment of annual lease charges to NOIDA Authority is clearly covered u/s 194A and as per the section there is no exception whatsoever for non deduction of TDS. Further, TDS is deductible on the interest u/s 194A. c) NOIDA came into existence on 17th April, 1976 under UP Industrial Area Development Act 1976. Acronym NOIDA is for the Authority (New Okhla Industrial Development Authority) as well as for the township (New Okhla Industrial Development Area). Certain salient features of UP Industrial Area Development Act, 1976, which are relevant are stated below: i. As per Section 3, the Authority shall be a Body Corporate. ii. As per Section 11, the Authority may with the previous approval of the state Government levy taxes. iii. As per Section 23, the Authority shall prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislature and not by judicial interpretation. When the provisions of section 1941 and its Explanation are self-contained, further words should not be imported to interpret the statute. Therefore, the decision of the Hon'ble ITAT in the case of ITO vs The Indian News Papers Society may not be followed for deciding the issue under consideration as the Hon'ble ITAT has erred in bringing in the provisions of Transfer of Property Act, 1882 . Further, the decision of the Hon'ble ITAT in the case of Add!. CIT(TDS) vs. Canara Bank may not be followed for deciding the applicability of section 194 A as the Hon'ble ITAT has erred as under: (i) In 194A (3 )(ii)(b), the legislature has used the words by or under whereas in the Notification u/s 194A(iii)(t), the word used is only by . When legislature has chosen to use or not to use a certain word, Hon'ble ITA T could not have imported any further word for interpreting statute. ii) The strict interpretation on the difference between being established by the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Canara Bank (supra) has been upheld by Hon ble Allahabad High Court reported in 69 Taxman.com 204. Ld. A.R. submitted that the decision of Hon ble Allahabad High Court relied upon by the Ld. D.R. in Civil Writ Tax No.1338/2005 in the case of NOIDA Vs Chief CIT decided on 28.02.2011 has been extensively considered by the Hon ble Allahabad High Court in its judgement in CIT Vs Canara Bank (supra), which is subsequent one and has distinguished the same. Ld. A.R. submitted that the contention of the assessee that NOIDA is a corporation established by State and therefore, is exempt from TDS in view of the Notification dated 22nd October 1970 issued u/s 194A(3)(iii)(f) of the Act, has been upheld. He also submitted that the decision of Hon'ble Supreme Court in case of Delco Engineering Pvt. Ltd. Vs Satish Prabhakar Padhya (2010) 4 SCC 378 has been distinguished by Hon ble Allahabad High Court in the case of CIT Vs Canara Bank (supra), wherein the issue was definition of usage of term a corporation established by or under an Act. Hon ble Allahabad High Court has relied upon the decision of Hon ble Supreme Court in the case of Suikhdev Singh and others Vs Bhagat Ram Sardar Singh Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying interest for deduction of tax at source from such interest, shall not apply in the circumstances. given in clauses (i) to (xi). Clause (iii) mandates that the requirement of deduction of tax at source contemplated by sub-section (1) shall be waived where such interest is credited or paid to any banking company/financial corporation/LIC/UTI, etc. One of the items of beneficiaries given in such list, as per subclause (f) is, 'such other institution, association or body or class of institutions, associations or bodies which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the official gazette.' Notification under section 194A(3)(iii)(f) has been issued which is dated 22.1 0.1970, as has been reproduced on page 1 of the assessment order. There are several institutions, specifically or generally, covered under this notification issued u/s 194A(3)(iii)(f). One of such items notified generally is: Any Corporation established by a Central, State or Provincial Act. The crux of the controversy before us IS whether or not the assessee falls under this item? Whereas the case of the assessee is that it 1S a corporation established by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther it has been established by an Act. 35. The Authority is a body corporate and consists of officers of the State Government. The objects and functions of the Authority have been clearly defined under section 6 of the Industrial Act. The main functions are to acquire land in the industrial development area by agreement or by acquisition under the Land Acquisition Act; to prepare a plan for the development of the industrial area and to provide amenities. The Authority has also been empowered to levy tax as is clear from the provisions of section 11. It empowers the Authority with the previous approval of the State Government to levy such taxes, as it may consider necessary, for maintaining or continuing any amenities in the industrial development area. The Authority has to maintain its own fund. The object of the Authority is to prepare in such form and at such time every year as the State Government may specify, a budget. Section 41 deals with the control of the State Government over the Authority. The dissolution of the Authority is also provided for in section 58. It can appropriately be gathered from the aforesaid provisions that NOIDA has been established by the Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Article 243-Q, however, stipulates that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, specify to be an industrial township. 40. State Government has issued a notification dated 24 December 2001 in exercise of the powers conferred under the proviso to clause (1) of Article 243-Q of the Constitution. The said notification provides that having regard to the size of NOIDA which has been declared to be an Industrial Development Area by a notification dated 17 April 1976 and the municipal services' being provided by NOIDA, the Governor is pleased to specify that NOIDA would be an Industrial Township with effect from the date of publication of the notification. This clearly means that instead of Municipal Corporation providing services, NOIDA would provide the said services and if that be so, then as observed by the Supreme Court in S. S. Dhanoa (supra), NOIDA will owe its existence to an Act of the State. 41. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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