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Similarly, no tax was deducted at source on payment of Rs. 3 lacs made to Suzlon Developers Pvt. Ltd. on account of 'sharing infrastructure facility' at Village Baramsar, to run and maintain wind mill in the wind mill field developed by Suzlon Developers Private Limited. The assessee was issued show cause notice asking it to show cause as to why it should not be held as an assessee in default in respect of the above said defaults. In reply, the assessee submitted that the entire wind mill field at village Baramsar, Dist. Jaisalmer (Rajasthan) was developed by Suzlon Developers Pvt, Ltd. to construct, run and maintain its thousands of wind Mills installed in the said wind mill field at Jaisalmer. The amount paid by the company was towards its contribution for undivided undetermined common infrastructure facility to be utilized during the life time of the said wind mill. As this amount was paid as contribution for the common pool raised /created for the development of wind mill and to provide common facilities permanently for years, no tax was required to be deducted at source on such contribution. It was further submitted that M/s Suzlon Developer Private Limited is merely collection and disbursement facilitator whereas the actual development of infrastructure is carried out by various agencies for years together and in such circumstances contribution of Rs. 3 lacs amounts to acquiring common facility for life time of the wind mill and does not attract any provisions of the tax deduction at source.

6. Aggreived by the appellate orders dated 01-08-2014 passed by learned CIT(A), the assessee filed second appeal with the tribunal.

7. The ld. Counsel for the assessee submitted that payment of Rs. 3 lacs was paid to M/s Suzlon Energy Limited for acquiring sublease rights of 5 bigha of land for 19 years which is further extendable for 11 years . The ld. Counsel submitted that further payment of Rs. 3 lacs was paid to Suzlon Developers Private Limited towards common infrastructure facilities at Wind Mill farm in village Baramsar, Jaisalmer. It is submitted that the assessee acquired the Wind Mill for a consideration of Rs. 1.36 crores including the payment of Rs. 3 lacs to M/s Suzlon Energy Limited towards premium for acquiring sublease rights of 5 Bigha land for 19 years which is further extendable for 11 years. It was submitted that the said payment of Rs. 3 lacs to Suzlon Energy Limited is in-fact lease premium paid for acquiring land for 8 ITA 6793/Mum/2014 19 years and is not paid for use of land which could be brought within ambit of definition of Rent for the purposes of Section 194-I of the Act as per explanation(i) to Section 194-I of the Act defining 'Rent' as was applicable for assessment year 2004-05.It was submitted that as part of the windmill Turn- Key project the company paid Rs. 3 lacs to Suzlon Developers Pvt. Ltd. as its share of the undivided common infrastructure facilities throughout the life of the Windmill which does not attract any provisions for tax deduction at source. It was submitted that section 194-I of the Act has been amended w.e.f. 13th July 2006 by Taxation Law (Amendment) Act, 2006 whereby new explanation(i) has been incorporated in lieu of old explanation(i) defining the meaning of 'Rent' It was also stated that TDS was applicable whether or not the building was owned by the payee or not as per the pre-amended definition while no such exclusion was there in pre-amended definition w.r.t. land and hence w.r.t. land it was compulsory that the land must be owned by the payee. It was submitted that the payment of rent for use of land is covered by the Explanation (i) of section 194-I of the Act only if the payee is the owner of the land as per pre-amended definition and payment made for acquiring land or capital assets cannot be brought within ambit of definition of 'Rent' as per Section 194-I of the Act. It is submitted that in assessee's case the payee M/s Suzlon Energy Ltd. is not the owner of land but the lessee of the land granted by Government of Rajasthan and the actual owner is Government of Rajasthan and the Rajasthan Government leased out the entire land of 307 bigha 03 biswa situated at Village Barmsar, Tehsil & District Jaisalmer, Rajasthan in favour of Suzlon Energy Ltd. vide lease deed dated 19th February, 2004 and the instant case is for assessment year 2004-05 which is covered by pre-amended definition of 'Rent'. In addition to the lumpsum payment of Rs. 3 lacs towards sub-lease premium, the assessee paid rent of Rs. 225/- periodically towards the use of the land. The ld. Counsel invited our attention to the agreement placed on record vide paper book page 3 to 18 whereby the assessee is entitled to mortgage or assign land in favour of any 9 ITA 6793/Mum/2014 financial institutions or banks and has only to notify within a period of three months of taking loan etc. to the sub-lessor and Government of Rajasthan, hence the payment is not covered by section 194-I of the Act as lease premium does not fall under the definition of 'Rent'. The ld. Counsel relied upon the judicial decisions:-

The assessee had also made payment of Rs. 3 lacs as its contribution for availing and use of common infrastructure facility to M/s Suzlon Developers Limited which are constructed, developed and operated by Suzlon Developers Private Limited. The common infrastructure facilities are :

16 ITA 6793/Mum/2014

a) Accessibility to the windmill

b) Protection and guarding of the wind turbine

c) Transmission of electricity generated from wind turbine to common grid station within the windmill farm

In our considered view, these common infrastructure facilities as detailed above require rendering of services associated with these infrastructure facilities for availing these infrastructure facilities which are in the nature of 17 ITA 6793/Mum/2014 payment to contractor for carrying out the work associated with the utilization of these common infrastructure facilities. These are payments hich are contractual payment for provision of various common infrastructure facilities by Suzlon Developers Private Limited to the assessee and is covered u/s 194-C of the Act. The assessee has claimed that the lower deduction certificate was issued by ACIT in favour of Suzlon Developers Private Limited to deduct tax at source @0.55% on contractual payments during the financial year 2003-04 which was produced by the payee (pb/page 19). In our considered view,this payment of Rs. 3 lacs was covered under the provisions of Section 194-C of the Act and the assessee has defaulted in not deducting tax at source u/s 194-C of the Act on this payment of Rs. 3 lacs to Suzlon Developers Private Limited. The verification is required from the side of A.O. w.r.t. claims of the assessee that the said Suzlon Develoeprs Private Limited hold lower deduction certificate issued by Revenue u/s 197(1) of the Act as also the claim of the assessee that the said Suzlon Develoeprs Private Limited has duly paid taxes on these payment of Rs. 3 lacs paid by the assessee( page 19-20/pb) and accordingly we set aside and restore this issue to the file of the A.O. with a direction to verify the afore-stated contentions of the assessee that M/s Suzlon Developers P. Ltd. has produced TDS certificate issued u/s 197(1) of the Act in their favour for the impugned assessment year 2004-05 for lower deduction of tax at source @0.55% on contractual payments and also that they have duly paid the taxes to Revenue after including afore-stated receipts. The binding decision of Hon'ble Supreme Court in the case of Hindustan Coca-Cola(supra) shall apply w.r.t. to interest liability accordingly after verification by the AO. Similarly, with respect to the contention of the assessee that there was an in-ordinate delay by Revenue of more than three years in passing the order in 2011 while the assesse gave all details by December 2007 and hence the assessee should not be penalized for interest for more than three years for no fault of assessee, this contention of the assessee needs verification by the AO and we are inclined to set aside and 18 ITA 6793/Mum/2014 restore this issue to the file of the AO for verification of contentions of the assessee and pass appropriate orders after verification on merits in accordance with law. Needless to say that proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law. The assessee is directed to co-operate with the authorities below , so that issues set aside and restored to the file of the AO by us be decided on merits in accordance with law. The AO shall allow the assessee to file relevant evidences and explanations in its defense . We order accordingly.