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TMI Blog2024 (2) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... ease or sub-lease or tenancy. Assessee s case would fall under the part or any other agreement involving land or any building, together with furniture, fittings and the land appurtenant thereto . It is nobody s case that assessee has taken any land or building together with furniture, fittings and the land appurtenant thereto. Thus we hold that the payments in question are liable for deduction of tax at source under the provisions of Section 194I - Decided in favour of assessee. - K. R. SHRIRAM SHARMILA U. DESHMUKH, JJ. For the Appellant in both appeals : Mr. P.C. Chhotaray. For the Respondent in both appeals : Mr. Ashok J. Patil. ORAL JUDGMENT : (PER K.R. SHRIRAM, J.) : INCOME TAX APPEAL NO. 307 OF 2003 WITH INCOME TAX APPEAL NO. 302 OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the short deduction of tax quantified at Rs. 1,05,99,465/- on which interest under Section 201(1A) of the Act worked out to Rs. 51,76,587/- was recoverable from assessee. 4. Against this order of Assessing Officer, assessee preferred an appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) vide an order dated 24th October 2000 partly allowed the appeal of assessee by holding that assessee was to deduct TDS for various payments made by it with further directions to the Assessing Officer to verify the facts that the payee or the deductees have declared in their respective returns of income the payments made by assessee. Assessee was also directed to furnish the said details or else it will be presumed that the payee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid and therefore the provisions of section 194 I were not applicable? 6. Section 194I of the Act, as then in force, reads as under : xxxxxxxxxxxxxxxxxx 194-I. Any person, not being an individual or a Hindu undivided family, who is responsible for paying to any person any income by way of rent, shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rate of - (a) fifteen per cent if the payee is an individual or a Hindu undivided family; and (b) twenty per cent in other cases : Provided that no deduction shall be made under this section where the amount of such income or, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 for non-payment of cost as directed by the Court. The other appeals, from the records and proceedings of those appeals, appear to have been dismissed for default sometime in August 2008. No application has been made for restoring those appeals. 8. In the impugned order the ITAT has come to the factual finding that It is an admitted position that the facts of the assessee s case are identical with those of Gulf Oil India Ltd. referred to by the learned Commissioner (Appeals) in his appellate order. Therefore, the ITAT following Gulf Oil India Ltd. (Supra) came to a finding that the storage tanks in question did not qualify either as land or as building within the meaning of Section 194I of the Act. We have also considered the Gulf Oil In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance by the Revenue in the case of Municipal Corporation of Greater Bombay and Ors. (Supra) is misplaced inasmuch as the provisions of Section 194I of the Act are not pari materia with Sections 3(r) and 3(s) of the BMC Act considered by the Hon'ble Apex Court in that case. It was submitted that under the definition of land in Section 3(r) of the BMC Act, land included things attached to the earth and so even a structure could be regarded as land, whether it is building or not, under the provisions of Section 3(r) of the Act. Mr. Patil also submitted that in the present case, assessee deducted tax at 2% under the impression that provisions of Section 194C of the Act are attracted and, therefore, assessee cannot be regarded either as asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he BMC Act or as a structure within the meaning of Section 3(s) of the BMC Act. The definition of building in terms of Section 3(s) of the BMC Act includes a structure. The definition of land included, inter alia, things attached to the earth. We find that there is no such extended definition of land or of building in Section 194I of the Act. 13. In our view, the storage tanks in question do not qualify either as land or as building within the meaning of Section 194I of the Act. In terms of Section 194I of the Act, there has to be a lease, sub-lease or tenancy or any other agreement involving land or any building excluding factory building. It is not the case of the Revenue that the storage tank was taken on lease or sub-lease or tenancy. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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