TaxTMI 
TaxTMI 
2018 (7) TMI 1463
X X X X Extracts X X X X
X X X X Extracts X X X X
....ong Term Capital Gain and granted relief. Hence the appellant prays for relief. 3. The Commissioner of Income Tax (Appeals)-10, Hyderabad, was not justified in not entertaining the fresh grounds of appeal filed by the appellant without giving any cogent reasons, as the additional grounds raised by the appellant are legal grounds, which can be raised by the appellant at any time before the Appellate Authority, the same may kindly be accepted and a decision may be given on the additional grounds filed by the appellant. 4. The understanding of the Commissioner of Income Tax (Appeals)-10, Hyderabad, in rejecting the admission of the additional grounds was not in accordance with Law. Hence, the relief may kindly be given by cancelling the demands raised U/s.234B & 234C of the I.T. Act. 3. Ground No.1 is general in nature, which does not require specific adjudication. 4. Ground Nos.2 & 3 are related to the computation of long term capital gains. The assessee is a non-resident and resident of USA. Mr.B Chitti Babu is the representative assessee in this case. During the previous year relevant to the Assessment year (A.Y.) the assessee sold immovable property admeasuring 994 sq.yds....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her submitted that there were certain drawbacks in the property such as occupation by tenant and lack of proper approach roads etc. and because of the said drawbacks, the property could not get reasonable rate as expected, and hence, the A.O. is not justified in arriving at the long term capital gain at Rs. 40,50,130/-. The Ld. A.R. argued that considering the drawbacks in the property, value adopted by the SRO should be scaled down and the value of the land as on 1.4.1981 should be enhanced to Rs. 200/- instead of Rs. 100/- considering the revised rates in 1982 by the Government of Andhra Pradesh. 5. On the other hand, the Ld. D.R. supported the orders of the lower authorities. 6. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. In this case, the assessee has sold the property for a consideration of Rs. 15.00 lakhs against the value assessed by the SRO at Rs. 54,03,500/-. On the objections raised by the assessee, the A.O. referred the valuation of the property to the DVO and the DVO valued the property at Rs. 89,03,000/-. The breakup of the value fixed by the DVO and SRO, itemwise are as under: Sl. N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was revised in 1982 and requested for backward working of the FMV, it is incorrect method to arrive at the FMV. For arriving the FMV as on 1981 the correct method is guideline value, or the sale value of the lands in the area, or the authentic market information and the value declared by the assessee in her wealth tax return. The assessee has not furnished any information to substantiate that the guideline value was incorrect. The A.O. has adopted the SRO value in the case of the sale consideration as well as for cost of land (FMV) and the decision taken by the A.O. is consistent. In the absence of any evidence to establish that the land rate of the area was at Rs. 200/- as on 01/04/1981 and the market rate was more than Rs. 100/-, we hold that the FMV arrived by the AO is reasonable and do not find any reason to interfere with the order of the CIT(A) and the same is upheld. 10. The next ground raised by the assessee was computation of short term capital loss in respect of super structures. During the appeal hearing, the Ld. A.R. did not make any argument on this ground. However, on going through the assessment order, the A.O. has adopted the value of sale consideration as adopted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the provisions of section 201 of the Income-tax Act and compute the amount accordingly. No doubt, If the person (payer) who had to make payments to the non-resident had defaulted in deducting the tax at source from such payments, the non-resident is not absolved from payment of taxes thereupon. However, in such a case, the non-resident is liable to pay tax and the question of payment of advance tax would not arise. This would be clear from the reading of section 191 of the Act along with section 209(1)(d) of the Act. For this reason, it would not be permissible for the Revenue to charge any interest under section 234B of the Act." 12.1 The coordinate bench of Kolkata ITAT-'C' Bench in the case of Additional Director of Income-tax, (International Taxation)- 3(1), Kolkata v. White Industries Australia Ltd., [2017] 81 taxmann.com 33 (Kolkata - Trib.)has considered the same issue and held as under: 22. As far as this appeal by the revenue is concerned the person making payment to the Assessee was duty bound to deduct tax at source u/s.195 of the Act on payment made to the Assessee, as the Assessee was a non-resident. In estimating the advance tax payable, the Assessee was bound t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on following decisions laying down identical proposition as set out above. DIT (International Taxation) v. Maersk Co. Ltd. [2011] 198 Taxman 518/10 taxmann.com 269/334 ITR 79 (Uttarakhand) (FB). Sedco Forex International Drilling (supra); Rheinbraun Engg. & Wasser Gmibh v. Dy. CIT [IT Appeal No. 1915 Bom./1996, dated 3 October 1997 (Bom.)]; M.M. Rathan v. ITO [1997] 62 ITD 21 (Mum.) (TM); Asia Satellite Tele Communications Co. Ltd. v. Dy. CIT [2003] 85 ITD 478 (Delhi); DIT v. NGC Network Asia LLC [2009] 313 ITR 187 (Bom.); CIT v. Tide Water Marine International Inc. [2009] 309 ITR 85/177 Taxman 150 (Uttarakhand) and CIT v. Ranchi Club Ltd. [2001] 247 ITR 209/114 Taxman 414 (SC). Therefore, the provisions of section 234B & 234C are not applicable to the Assessee. 25. Under Section 209(1)(a)to (d) lays down four situations under which advance tax payable by the assessee is to be computed. In the present case we are not concerned with clauses (a) to (c). Clause (d) of sub-Section (1) of Sec.209 is relevant for the present case and it reads thus:- "(d) The income-tax calculated under clause (a) or clause (b) or clause(c) shall, in each case, be reduced by the amount of income-t....