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Income Tax Appellate Tribunal, ‘’C’’ BENCH, AHMEDABAD
(Applicant) (Respondent) Assessee by : Shri Tushar P. Hemani, A.R Revenue by : Shri L.P. Jain, Sr.D.R सुनवाई क� तार�ख/Date of Hearing : 01/08/2019 घोषणा क� तार�ख /Date of Pronouncement: 16/10/2019 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals), Gandhi Nagar, Ahmedabad [Ld. CIT(A) in short], dated 01/12/2017 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") dated 15/03/2016 relevant to Assessment Year (AY) 2008-09.
The assessee has raised the following grounds of appeal:
The learned CIT(A) has erred both in law and on the facts of the case in confirming the action of AO in reopening the assessment u/s 147 of the Act. On the facts and circumstances of the case, learned CIT(A) ought to have held that the action of reopening is without jurisdiction and not permissible cither in law or on facts.
The learned C1T(A) has erred both in law and on the facts of the case in confirming addition of Rs.59,39,819/- as income from other sources. 3. The learned CIT(A) has erred both in law and on the facts of the case in not holding that interest on enhanced compensation is part of the compensation for land and is hence not taxable. 4. The learned CIT(A) has erred in confirming the action of the AO of treating the interest as income from other sources and not capital gain. 5. Alternatively and without prejudice, the learned CIT(A) has erred both in law and on the facts of the case in confirming the action of the AO of holding that interest received on enhanced compensation for compulsory acquisition of land is taxable on receipt basis. 6. In any case, the learned C1T(A) has erred in confirming the action of the AO of making an addition of the entire interest amount despite the appellant being a co- owner having l/5lh share in the acquired land. 7. Both the lower authorities have passed the orders without properly appreciating the facts and they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. 8. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in levying interest u/s.234A/B/C of the Act. 9. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in initiating penalty u/s.271(l)(c) of the Act. The appellant craves leave lo add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.
2. At the outset, the ld. AR for the assessee submitted that he has been instructed by the assessee not press Ground no. 1 challenging the reopening under section 147 of the Act. Therefore we dismissed the same as not pressed.
The effective issue raised by the assessee is against the confirmation of the addition of Rs. 59,39,819.00 only by the Ld. CIT-A.
The brief facts of the case as culled out from the order of the authorities below are that the assessee is an individual and derives his income from the source of agricultural activities. The assessee, along with other co-owners/ parties, in the year under consideration received an amount of interest of ₹60,06,559/- on the amount of enhanced compensation awarded by the order of Hon’ble Gujarat High Court. The assessee received the such interest amount after the deduction of TDS amounting to ₹6,12,668/- only. The assessee further submitted as under: i. The amount of interest on the enhanced compensation belongs to the five parties as detailed under: Sr.No. Name Relationship 1. Smt. Champaben M. Wife ( of Late Shri Patel Manilal R Patel) 2. Kanubhai M Patel Son ( of late Shri Manilal R Patel) 3. Dinesh M Patel Son ( of Late Shri Manilal R Patel) 4. Navin M Patel Son ( of Late Shri Manilal R. Patel) 5. Rayanaben M Patel Daughter ( of Late Shri Manilal R. Patel)
ii. The amount of interest on the enhanced compensation pertains to the period beginning from the assessment years 1991-92 to 2008- 09 i.e. the year of receipt which is under consideration.
3.1 In view of the above the assessee allocated the amount of interest over a period of 18 years and among all the parties as discussed above. Thus the assessee attributed such amount of interest on the enhanced compensation to each party for the each year amounting to ₹66,740.00 only. The assessee Page 3 of 9 further calculated the amount of tax attributable to such interest income for different assessment years beginning from 1991-92 to 2008-09 amounting to ₹53,538.00 for the each party which was multiplied by 5 in order to work out the total tax liability against such interest on enhanced compensation with respect to all the parties. Thus, the total tax was determined at ₹2,67,640.00 (53,538.00 * 5) with respect to all the parties and for all the assessment years to which such interest income pertains.
3.2 As the TDS certificate of Rs. 6,12,668.00 was issued in the name of the assessee, therefore he has paid the amount of tax through the TDS on behalf of all the parties and claimed the refund of the balance amount of ₹ 3,45,028.00 (Rs. 6,12,668.00 –Rs. 2,67,640.00).
3.3 However, the AO disagreed with the submission of the assessee by observing that the entire interest income belongs to the assessee only for the year under consideration. As such there was no direction in the order of the Hon’ble Gujarat High Court to allocate such interest income among the 5 members as claimed by the assessee.
3.4 The AO also observed that the allocation of impugned interest income over a period of 18 years based on mercantile system of accounting is not as per the provisions of law.
In view of the above, the AO treated the entire amount of impugned interest as the income of the assessee, that too, for the year under consideration.
4. The aggrieved assessee preferred an appeal to the Ld. CIT (A) who has confirmed the order of the AO by observing as under: It is seen that during the assessment proceedings, the appellant inspite of several opportunities did not furnish any evidences to show that the said Interest was received by 5 persons as claimed by the appellant Moreover, it is also seen that the order of the Hon’ble High Court also does not mention the names of the other 4 co-owners. Even the IDS certificate has been Issued only .in the name of the appellant. Moreover, the other co- owners have not filed their return of income. The appellant as well did not file his return of income in .any of the earlier years. In view of all these facts It is dear that the Interest has been received by the appellant, It has not been offered for taxation on accrual basis in earlier years and in view of the decision of the Hon’ble Supreme Court cited supra, It Is to be taxed In the year of receipt In view of these facts, no Interference Is called for In the decision taken by the AO and the addition of Rs.59,39,819/- is confirmed. Ground of appeal is dismissed.
Being aggrieved by the order of the Ld. CIT (A), the assessee is in appeal before us.
The Ld. AR before us filed a paper book running from pages 1 to 24 and submitted that the land acquired by the Government under the compulsory acquisition scheme belongs to 5 parties. The names of such 5 parties are appearing in the order of the Hon’ble Gujarat High Court.
5.1 The Ld. AR also claimed that the impugned interest was awarded to the assessee for a period of 18 years beginning from the assessment year 1991-92 to the year under consideration (i.e. 2008-09). Therefore, the amount of such interest was allocated over a period of 18 years based on mercantile system of accounting and after placing reliance on the judgment of Hon’ble Supreme Court in the case of Rama Bai v/s CIT reported in 181 ITR 400.
5.2 The Ld. AR also claimed that the PAN of the assessee was available with the concerned authority, therefore, the TDS certificate was issued in the name of the assessee. Page 5 of 9
On the other hand, the d. DR vehemently supported the order of the authorities below.
We have heard the rival contentions of both the parties and perused the materials available on record. The facts of the case have already been elaborated in the preceding paragraphs which are not in dispute. Therefore we are not inclined to repeat the same for the sake of brevity and convenience.
The 1st issue for our consideration arises whether the impugned land 7.1 with respect to which the interest was awarded, belongs to 5 parties as claimed by the assessee. In this regard, we are inclined to refer the judgment of the Hon’ble Gujarat High Court bearing L.A.R. Number 497/98 which reads as under:
497/98 1.Champaben, Wd/o. Manilal Rancchodbhai Patel 2. Kanubhai Manilal Patel 3. Dineshbhai Manilal Patel 4. Navinbhai Manilal Patel 5. Ranjanben Manilal Patel All are residing at Village Bhatt Ta. & Dist. Gandhinagar
On perusal of the above order, it is revealed that the court has awarded the interest on the enhanced compensation to the 5 parties. Therefore in our considered view the impugned interest income belongs to the 5 parties as claimed by the assessee.
7.2 The 2nd issue arises for our consideration whether the impugned interest income is attributable to the period of 18 years beginning from the assessment year 1991-92 and up-to the assessment year 2008-09 as claimed by the assessee. In this regard, we note that the assessee was awarded the interest from the date of publication of the notification under section 4 of land acquisition Act 1894 i.e. 14-10-1990 up to deposit of the awarded amount. This fact can be verified from the order of the Hon’ble Gujarat High Court as discussed above. The relevant finding of the order extracts hereunder:
The applicants are also entitled to get 30% amount under the head of Solatium and also entitled to get 9% interest for the first year and thereafter at the rate of 15% for the second year on total up to depositing of the awarded amount.
7.3 We also note that the assessee during the assessment proceedings has submitted the details of the parties who are entitled for the interest income along with the period to which the interest pertains. The details are available on page 24 of the paper book. None of the authorities below have pointed out any defect therein.
7.4 We also want to make it clear that the impugned interest income i.e. interest on the enhanced compensation was chargeable to tax to the respective years to which it pertains till the assessment year 2009-10. In holding so, we draw our support and guidance from the judgment of Hon’ble Supreme Court in the case of Rama Bai v/s CIT (supra) wherein it was held as under: “The effect of the decision, we may clarify, is that the interest cannot be taken to have accrued on the date of the order of the Court granting enhanced compensation but has to be taken as having accrued year after year from the date of delivery of possession of the lands till the date of such order.”
7.5 However, subsequently there was an amendment under section 145A of the Act which mandates to levy the tax on the interest on the enhanced compensation in the year of receipt. The memorandum explaining such amendment reads as under: Section 145A Finance Act, 2009
Method of accounting of interest received on delayed compensation 11.3 Section 145A dealing with method of accounting has been amended with effect from assessment year 2010-11 to provide that the interest received by an assessee on compensation of enhanced compensation shall be deemed to be his income for the year in which it is received irrespective of the method of accounting followed by the assessee. In Smt. Rama Bai v. CIT [1990] 181 ITR 400/[1991] 54 Taxman 496 [also see CIT v. TNK Govindarajulu Chetty[1987] 165 ITR 231] the Supreme Court held that arrears of interest computed on delayed or enhanced compensation shall be taxable on accrual basis. The memorandum explaining the provisions of the Finance (No. 2) Bill, 2009 states that the aforesaid amendment has been made with a view to mitigate the hardship caused to the taxpayer on account of this judgment. The amendment will apply to all assessees including corporate assessees which are required to maintain accounts on accrual basis under the Companies Act, 1956.
7.6 There is no ambiguity to the fact that such amendment doesn’t apply to the year under consideration. Therefore we hold that such interest income shall be subject to tax on accrual basis for the year under consideration.
7.7 However, we note that the assessee has paid the tax on such interest income which was worked out for the each year involved separately in the year under consideration.
7.8 We further note that indeed the TDS certificate was issued in the name of the assessee and accordingly the assessee has paid the taxes due on such income on behalf of all other parties. This fact can be verified from the income tax return filed by the assessee placed on page 1 of the paper book. Therefore, it is immaterial whether other parties have paid the taxes on such income. As such there is no loss to the revenue as well as there is no technique used by the assessee to avoid the tax on such income adopting the colorable device.
In view of the above, we are not convinced with the finding of the authorities below. Accordingly we set aside the order of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on 16/10/2019 at Ahmedabad.