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TMI Blog2023 (2) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... not be regarded as assessee in default u/s 201(1)/201(1A) of the Act. - Decided in favour of assessee. - I.T.A. No.1644/DEL/2020 - - - Dated:- 15-12-2022 - SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER Appellant by: Shri Rajat Jain, Adv. And Shri Akshat Jain, CA Respondent by: Shri Kumar Pranav, Sr.DR ORDER PER PRADIP KUMAR KEDIA, A.M.: The captioned appeal has been filed by the Assessee against the order of the Commissioner of Income Tax (Appeals)-XXXVIII, Delhi [ CIT(A) in short] dated 20.08.2020 arising from the order dated 28.03.2018 passed under Section 201(1)/201(1A) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12. 2. The grounds of appeal raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere paid separately to Maintenance company i.e. third party other than lessor, who does not own the alleged space / premises taken on lease by the appellant. 4. Without prejudice to the Grounds of Appeal 1 to 3, That on the facts and in the circumstances of the case, the appellant is having immunity under the first proviso to Section 201(1) of the Income tax Act, 1961 and should not be treated as assessee in default for short deduction of tax at source on Common Area Maintenance Charges being deductee has already considered the said charges as income in its return of income. 3. As per the grounds of appeal, the assessee essentially seeks to challenge the allegation of the Revenue that the assessee is in default under Section 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cability of Section 194C or Section 194I on payment of CAM charges by licensee Assessee. To address the issue, a reference was made to the MOU between the lessor/owner and the licensee assessee. It is the case of the assessee that the rent payment to the licensor is independent of the CAM charges payable and thus the CAM charges cannot partake the character of rent. The assessee thus contends that the deduction rate applicable on CAM charges @2% under Section 194C has been rightly deducted. The assessee also contends that while the rent has been paid to Ambience Infra Pvt. Ltd. as per the MOU dated 28th November, 2006, the CAM charges have been paid to a separate entity namely, Ambience Facilities Management Pvt. Ltd. A reference was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annual value of property u/s 23(1) of the Act for the purpose of Section 22 of the Act. However, in the present assessee company's case, the common area maintenance charges was not forming the part of the actual rent paid to the owner by the assessee company. There is a separate agreement between the Owner, Tenant and service provider for common area maintenance which is distinguishing fact and thus, the decision of the Hon'ble Punjab and Harayana High Court will not be applicable in the present case. Therefore, the CIT(A) was not right in confirming the order of the Assessing Officer. Hence, appeal of the assessee is allowed. 7.1 In the light of the text and tenor of the agreement entered into by the licensee-assessee read w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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