2024:BHC-AS:19925 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4958 OF 2024 Sarfaraz S. Furniturewalla ...Petitioner Versus Afshan Sharfali Ashok Kumar & Ors. ...Respondents ____________________________________

Adv. Rustom Pardiwala i/b. Adv. Rushab V. Thacker for the Petitioner.

AMOL DILIPRAO Adv. Zaid Ansari a/w. Adv. Anmol Menion i/b. Zaid S. Ansari &

NAWALE Associates for Respondnet Nos. 1 and 2.

Digitally signed by AMOL DILIPRAO NAWALE Date: 2024.05.01 15:49:26 +0530 Adv. Manal Dhanani i/b. Cue Legal for Respondent No.3.

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CORAM : RAJESH S. PATIL, J .

DATED : 15 APRIL 2024 JUDGMENT :

1. The papers are allowed to be produced at 2.30 p.m., in view of urgency

2. Mr. Pardiwala has moved this matter seeking a clarification as regards to paragraph No.10 (viii) of Order dated 2 April 2024.

3. He submits that line No.11 the words “with the interest” should be deleted as according to him, the amount which has been withdrawn from the Court of the Small Causes, would be paid by his client towards compensation/license fee of the premises in which his client is residing. Therefore, according to him, if at all the Court comes to a conclusion that the amounts are to be returned by his client, the said amounts cannot be with the clause “Interest”.

4. In paragraph No.10 (viii) of the order dated 2 April 2024 I have very specifically mentioned that the “interest, if any, as directed by the Court of the Small Causes”. Hence, the submissions of Mr. Pardiwala made before this Court today, can be advanced by him at the time of hearing and final disposal of the R.A.D Suit and it will be the total discretion of the Judge of the Court of Small Causes Court, who hears the R.A.D. suit, to decide whether interest would be payable.

5. Mr. Dhanani, sought directions from this Court that both the parties i.e., the petitioner, respondent nos. 1 and 2, be directed to provide photo copy of their Pan Cards, so that his client will deduct the TDS from the amount payable to them as “transit rent”.

6. Mr. Pardiwala submitted that there is no question of deduction of TDS from the transit rent. Mr. Pardiwala submitted that the said issue has already been covered by two orders passed by Income Tax Appellate Tribunal in the matter of (i) Smt. Delilah Raj Mansukhani in ITA No. 3526/MUM/2017 (Assessment Year : 2010-2011), and (ii) Ajay Parasmal Kothari in ITA No.

2823/MUM/(A.Y : 2013-2014)

7. I have heard Mr. Dhanani and Mr. Pardiwala on the issue as to Whether there should be deduction of TDS on the amount payable to Petitioner and Respondent Nos.1 & 2 as “Transit Rent”, by the developer / builder?.

8. For the said purpose, it will be necessary, to consider section 194 (I) of the Income Tax Act.

Sec. 194(I) of the Income Tax Act, reads as under :

Sec.194 (I) - Rent “ Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident] 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 a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rate of -

[(a) two per cent. for the use of any machinery or plant or equipment; and (b) ten per cent. for the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:]

Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed

5[two hundred and forty thousand rupees]: [Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary li