PRANAV SARAN,NEW DELHI vs. ACIT CIRCLE-32(1), NEW DELHI

impugned order dated 18.03.2021, passed by the ld. National Faceless Appeal Centre (NFAC), Delhi for the quantum of assessment passed under section 143(3) of the Income-tax Act, 1961 (for short ‘the Act’) for the Assessment Year 2016-17. grounds :-

“1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the benefit of exemption claimed by the assessee u/s 10(37) on the compulsory acquisition of agricultural land under the Land Acquisition Act and more so when all the conditions have been complied with by the assessee and further erred in exercising his jurisdiction u/s 251(2) in treating the subject agricultural land as 'Capital Asset' U/S 45(5) and that too by recording incorrect facts and findings and without appreciating the facts and circumstances of the case and in violation of principles of natural justice and without considering the submission filed by the assessee and without providing the entire adverse material available on record.

4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in holding as under:- (a) That the land in question is a 'Capital Asset', whose acquisition by state Government is a transfer of capital asset wherein the principal compensation received by the appellant is chargeable to under the head 'Capital Gains' u/s 45 of Income Tax Act, 1961. (b) That interest on enhanced compensation is to be treated as 'Income from Other Sources' u/s 56 of Income Tax Act, 1961.

4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in treating the interest on enhanced compensation as interest simpliciter whereas such interest is to be treated as part of compensation itself in view

“Sale consideration of property reported by the assessee in schedule CG of ITR is less than the compensation on acquisition of immovable property reported by transferee of property in TDS return (for TDS u/s 194L and 194LA).”

“44. From the above facts and judicial pronouncements the appellant does not fulfill the conditions for claiming exemptions under section 10(37) of the Income tax Act, 1961. The nature and character of land, as seen from various documents submitted by the appellant during the assessment and appellate proceedings acquired by the Haryana Government under compulsory acquisition cannot be called Agricultural Land under the provisions of the Income-tax Act, 1961. In view of the above facts and circumstances the land in question is a ‘Capital Asset’, whose acquisition by State Government is a transfer of capital asset wherein the principle compensation received by the appellant is chargeable under the head Capital Gains under section 45 of the Income-tax Act, 1961. Interest on the enhanced compensation is to be treated as ‘Income from other sources’ under section 56 of the Income-tax Act, 1961. The AO is directed accordingly.”

(iii) ITO vs. Shri Vinayak Hari Palled, date of order 12.10.2018 (Bang.)

(iv) Jagmal Singh vs. ITO, date of order 20.09.2018 (Del.);

(v) ITO vs. Shri Basavaraj M Kundarikannur, & 1750/2017 dated of order 01.06.2018 (Bang.);

(vi) Shri Yashpal Singh vs. ITO, date of order 18.03.2014 (Asr); (vii) Sumesh Kumar vs. ITO, date of order 05.03.2020 (Del.); (viii) Shri Baldev Singh vs. ITO, date of order 08.03.2019 (Del.); (ix) ITO vs. Shri Dhanender Kumar HUF, date of order 30.09.2019 (Chd);

(x) Shri Ummed Singh & Ors. vs. ITO, date of order 30.01.2020 (Del.); and (xi) Mahesh Kumar Gupta vs. DCIT, date of order 16.10.2019 (Del.) Copies of which have been filed in the paper book before us.

He also referred to Form ‘D’ issued by Land Acquisition Officer which is issued in the case of compulsory acquisition of land which itself goes to show that it was agricultural land only. This Form ‘D’ issued by LAO has been signed by him and Patwari and Kanungo certifying that it was an agricultural land. He also referred to copy of jamabandi at pages 73 to 75 of the paper book which clearly shows that the land was under self-cultivation and there were tubewells and it was irrigated land establishing the nature of land as agriculture. He also pointed out that in the earlier income-tax returns starting from AY 2004-05 onwards; assessee had shown agricultural income from these land only.

Insofar as observation and the finding of the ld. NFAC that it was not agricultural land, he strongly relied upon the finding and reasoning of the ld. first appellate authority. relevant findings given in the impugned order as well as the material referred to before us. Here in this case, the assessee is having agricultural land in Village Gulab Nagar, HB-404, Tehsil Jagadari, District Yamuna Nagar, Haryana. The assessee’s land was acquired by the Government of Haryana and Land Acquisition Collector had announced award on 16.07.2007 fixing the market value of the land at Rs.20,00,000/- per acre. Later on, it was awarded enhanced compensation of Rs.95,00,000/- per acre by Hon’ble Supreme Court.

The assessee was awarded interest u/s 28 of the Land Acquisition Act of Rs.3,31,93,013/- and had claimed deduction of 50% in the revised return and accordingly, in the return of income, the assessee has shown income on this amount of interest at Rs.1,70,83,650/-. Later on, during the course of assessment proceedings, the assessee claimed that this interest is not taxable at all, because such interest is enhanced income u/s 28 of the Land Acquisition Act and, therefore, it partakes the character of compensation which is held to be not taxable by Hon’ble Supreme Court in the case of CIT vs. Ghanshyam HUF and in the case of UOI vs. Hari Singh (supra). Ld. AO however held that the same is taxable. In the appeal filed before the first appellate authority, NAFC, the first appellate authority changed the entire compensation was awarded itself was not an agricultural land and, therefore, assessee is not entitled for any exemption u/s 10(37) of the Act which was brought into the statute to safeguard the interests of the farmers by the State Government under schemes of compulsory acquisition.

Matter Section Period Rate To be awarded by the court 28 From the date of taking 9% along with the excess possession of land by compensation award the collector to the date of payment of excess award in the court Court may also direct for 28 From the date of expiry 15% payment of this interest if of. Of one year of the enhanced compensation is date of possession till paid into court after the the amount is date of expiry of. Of one deposited in the court. year from the date on which position is taken taxmann 119 (SC) three judges bench decisions dated September 12, 1996 considered the provisions of Section 2 (28A) of the income tax act and defined the meaning of the interest. The issue before the court was whether interest received on amount of compensation Under the land acquisition act 1894 for the delay in its payment was income receipt or not. The claim before the Hon’ble court by the assessee is that payment of interest is only a payment in consideration of loss of enjoyment of the possession of the land by the owner and not by way of any charge on compensation and therefore it was not exigible to income tax. It was also the claim that definition of interest u/s 2 (28A) is confined only to money lending business between a debtor and the creditor. The Hon’ble High Court of Punjab and Haryana in that case has held that the interest is not part of compensation but it is awarded for depriving assessee of user of such compensation due to delay in payment and such is income. The Hon’ble Supreme Court: i. Rejected the contention that definition of interest in Section 2 (28A) is only confined to money lending business. It held that the meaning of the interest Under the income tax act to mean interest payable in any manner in respect of an incurred including a deposit, claim or obligation and includes - - - ./2021 ii. It held that once it is construed that any interest is a revenue receipt unless there is an exemption under the appropriate provision the revenue receipt is exigible to tax. It held that interest received as income on the delayed payment of the compensation determined under the provisions of the land acquisition act is a taxable event and therefore it is a revenue receipt exigible to tax u/s 4. iii. The Hon’ble court held that the controversy was decided greatly in the case of Dr sham Lal Narula versus CIT (1964) 53 ITR 151 [ another three judges bench of Hon SC] wherein the definition of the interest was considered. It was held that when the title has passed on to the state any statutory interest provided thereafter can only be regarded either as representing the profit which the owner of the land might have made if here the use of the money or the losses suffered because he had not that use it cannot be held to be as damages or compensation. The court in that case held that the interest paid u] s 34 of the act is interest paid for the delayed payment of compensation and therefore it is a revenue receipt liable to tax under the income tax act. iv. The court also considered several decisions of the Hon’ble Supreme Court in case of 66 ITR 465, 181 ITR 400 & 181 ITR 408. v. The Hon’ble court in para number 10 categorically held that interest received as income on the delayed payment of the compensation determined u/s 28 or 31 [?] {sic 34} of the vi. In that para only the court also hinted that appellants are entitled to spread over the income for which payment came to be made so as to compute the income for assessing tax for the relevant accounting year. vii. It upheld the order of the Hon’ble Punjab and Haryana High Court.

i. Year of taxability of enhanced compensation is the year of receipt. ii. Interest is different from compensation iii. Interest paid on the excess amount u/s 28 depends upon the claim of the landowner, interest u/ s 34 for compensating delay in making payment. iv. Interest u/s 28 is part of the compensation for the reason that it includes within its ambit both the market valuation and solatium. v. Interest u/s 34 is only for delay in making payment after the compensation amount is determined.

./2021 vi. Interest u/s 28 is part of the enhanced value of land and is distinct from interest u/s 34 of the act. vii. The provisions of the income tax act were not at all considered in that case

(viii) which provided that income by way of interest received on compensation or on enhanced compensation referred to in clause (B) of Section 145A is an income. A corresponding provision was also introduced u/s 57 (iv) providing for deduction of a sum equal to the 50% of the income chargeable to tax under the above provision. The provisions of Section 145A (B) was also introduced providing that interest received by the assessee shall be deemed to be the income of the year in which it is received. Subsequently with retrospective effect interest received on compensation or enhanced compensation is chargeable to tax as income from other sources Under the provisions of Section 56 (2) (viii) of the act.

It further held that the language of the income tax act with respect to the chargeability of interest as income is plain, simple and unambiguous and therefore no scope of taking outside aid for giving any interpretation to this subsection or clauses are required. Thus it held that interest received on compensation or enhanced compensation is to be treated as income from other sources and not under the head capital gains. Special leave petition against this decision has been dismissed by the Hon’ble Supreme Court.

(i) Award showing the land as irrigated land; (ii) Existence of tubewells, tress and kharif crops; (iii) Form No.D issued by Land Acquisition Officer which was signed by him and also by Patwari & Kanungo clearly mentioned that the amount paid to the assessee is against agricultural land; (iv) Jamabandi showing the nature of crops produced; and (v) Income-tax returns showing agricultural income; it cannot be inferred even remotely that the land which was acquired by the Government was not an agricultural land. The observation and the finding of the ld. first appellate authority despite noting down these evidences does not have any basis to negate these evidences nor any independent enquiry has been made to counter these evidences.

In fact the entire impugned order revolves around on various case laws counsel before us. However, we do not find it relevant to discuss here, as none of the case laws are relevant for the present case in the light of these evidences. Once the Land Acquisition Officer as well as court have awarded the compensation treating to be an agricultural land and not only that, all the Revenue departments have certified that it was an agricultural land and substantial proof has been given that agricultural activities were being carried out, then to say that it was a commercial land and not an agricultural land, is unjustifiable.

Order was pronounced on this 4th day of May, 2022.