DCIT, CIRCLE, SIRSA vs. SH. VAIBHAV CHOUDHARY, FATEHABAD

आदेश/Order

Per Sanjay Garg, Judicial Member:

The present appeal has been preferred by the Department against the order dated 27.11.2018 of the Commissioner of Income Tax (Appeals) Hisar [hereinafter referred to as ‘CIT(A)’]

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 2 while relying on the decision of the Hon'ble Supreme Court in the case of

“CIT v Ghanshyam 'HUF' 315 ITR 1 (SC), wherein, it has been held that the

interest paid on the excess amount u/s 28 of Land Acquisition Act, 1894 is

part of enhanced value of the land and as such the same is not taxable as

interest Income u/s 34 of the said Act. The Ld. CIT(A) has relied on the

decision of the Hon'ble Supreme Court in the case of ‘CIT vs Hari Singh and

Ors’ in Civil appeal No. 15041 of 2017 vide order dated 15.9.2017. The Ld.

CIT(A) has also relied on the decision of the Coordinate Chandigarh Bench

of the Tribunal dated 17.7.2018 in ‘Som Nath v ITO’ ITA No.552/Chd/2016.

The relevant part of the order of the CIT(A) is reproduced as under:-

“5.3 I have gone through the facts of the case and written submission filed by the appellant. It is observed that the Hon'ble Supreme Court in the case of CIT v/s Ghanshyam (HUF) 315 ITR 1 has held that interest paid on the excess amount, u/s 28 of 1894 Act, depends upon a claim by the person whose land is acquired whereas interest u/s 34 is for delay in making payment. Interest u/s 28 is a part of enhanced value of land which is not the case in the matter of payment of interest u/s 34. The relevant extract from the decision of the Hon'ble Apex Court in Ghanshyam(HUF) supra is quoted as under:-

"54. Section 45(5) read as a whole [including clause (c)] not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/ consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under the 1894 Act at different stages, the receipt of such enhanced ompensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 3 taxability. Consequently, even in cases where pending appeal, the K court/tribunal/authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1-4-2004, the receipt of enhanced compensation under Section 45(5) (b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt.

5.4 The AO has held that subsequent to amendment brought in by Finance (No.2) Act 2009 whereby clause (viii) had been inserted in section 56(2) and section 145 A having been substituted, interest received on enhanced compensation u/s 28 of the Land Acquisition Act was also taxable under section 56(2)(viii) of the Act after allowing 50% deduction u/s 57(iv) of the Act.

5.5 The substitution of section 145A by Finance (No.2) Act, 2009 was not in connection with the decision of the Hon'ble Supreme Court in Ghanshyam (HUF) (supra) but was brought in to mitigate the hardship caused to the assessee on account of the decision of the Supreme Court in Smt. Rama Bai v. CIT, (1990) 181 ITR 400 (SC) whereby it was held that arrears of interest computed on delayed or enhanced compensation shall

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 4 be taxable on accrual basis. Therefore, when one reads the words "interest received on compensation or enhanced compensation" in section 145A of the I.T. Act, the same have to be construed in the manner interpreted by the Hon'ble Supreme Court in Ghanshyam (HUF) (supra). Therefore, interest u/s 28 of Land Acquisition Act, 1894 is not covered by the term 'interest' under Section 56(2)(viii) and 145A(b). It must be construed as compensation.

5.6 Although the Hon'ble Punjab & Haryana High Court considered this issue in the cases of Manjeet Singh (HUF) karta Manjeet Singh vs Union of India and Ors. CWP No. 15506 of 2013 dated 14.01.2014 (2016) 237 taxmann 116 and Sunder Lai and Anr. Vs Union of India CWP No.2014 of 2015 vide order dated 21.09.2015 and held that interest received u/s 28 of the Land Acquisition Act is in the nature of interest and is taxable but recently the issue was once again decided by the Hon'ble Supreme Court vide its order dated 15.09.2017 in the case of Union of India vs Hari Singh and Ors. In Civil Appeal No. 15041 of 2017. In this decision, the Hon'ble Supreme Court held as under:-

"While determining as to whether the compensation paid was for agricultural land or not, the AOs will keep in mind the provisions of section 28 of the Land Acquisition Act and the law laid down by this court in Commissioner of Income Tax, Faridabad v. Ghanshyam (HUF) (2009 (8) SCC 412) in order to ascertain whether the interest given under the said provisions amounts to compensation or not."

5.7 The Jurisdictional ITAT, Chandigarh in its decision of 17.07.2018 in Som Nath Vs. ITO, ITA No.552/Chd/2016 discussing Hon'ble Punjab & Haryana High Court decisions in the case of Manjeet Singh (HUF) and the Hari singh case (supra) held that the proposition laid down by Hon'ble Apex Court in Ghanshyam HUF (supra) is the law of the land and interest received on compulsory acquisition of land u/s 28 of Land Acquisition Act is in the nature of compensation and is not taxable u/s 56 of the Act. Further the jurisdictional ITAT in

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 5 its recent common order, dated 04.10.2018 in a group of cases of various appellants namely Sh. Surinder Kumar and others in ITA No. 539 to 543/Chd/2016, ITA No.673/Chd/2016, ITA No.547 to 551/Chd/2016, ITA No.368/Chd/2014, ITA No.948/Chd/2016 and ITA No.949/Chd/2016 has discussed the issue of taxability of interest u/s 28 received on enhanced compensation on lands compulsorily acquired by the Government as under: “7. The core ground involved in these appeals is regarding the taxability of interest received on enhanced compensation u/s 28 of the Land Acquisition Act, 1894. Now, there are two questions involved in these appeals, first issue is regarding the year of taxability of the interest income whether it has to taxed in the year of receipt in the light of the decision of the Hon'ble Supreme Court in the case of Ghanshyam (HUF) (supra) or is to be taxed on the basis of apportionment for each year from the date of acquisition of lands till the receipt of the compensation in the light of the decision of the Hon'ble Supreme Court in the case of Rama Bai (supra); the second issue involved is as to whether the interest awarded u/s 28 of the Land Acquisition Act on enhanced compensation is to be treated as part of the enhanced compensation and will not be taxable separately as interest income under the Head ‘income from other sources’? 8. We find that both these issues are covered by the aforesaid decision of the Hon'ble Supreme Court in the case of Ghanshyam (HUF) (supra) holding the same to be in the nature of compensation itself. The Court also dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in 8 which it is received. The said findings given in the case of Ghanshyam (HUF) (supra) have been reiterated by the Hon'ble Supreme Court in the case of Govindbhai Mamaiya (supra) observing as under:

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 6 “In so far as the second question is concerned, that is also covered by another judgment of this Court in Commissioner of Income Tax, Faridabad vs. Ghanshyam (HUF) reported in (2009) 8 SCC 412, 6 albeit, in favour of the Revenue. In that case, the court drew distinction between the “interest” earned under Section 28 of the Land Acquisition Act and the “interest” which is under Section 34 of the said Act. The Court clarified that whereas compensation given to the assessee of the land acquired would be 'income', the enhanced compensation/consideration becomes income by virtue of Section 45(5)(b) of the Income Tax Act. The question was whether it will cover “interest” and if so, what would be the year of taxability. The position in this respect is explained in paras 49 and 50 of the judgment which make the following reading: “49. As discussed hereinabove, Section 23(1-A) provides for additional amount. It takes care of the increase in the value at the rate of 12% per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of the enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1-A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under section 34 which depends on undue delay in making the award. 50. It is true that “interest” is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards “interest” both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 7 enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23 (1-A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act.” 8. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. It would mean that converse position i.e. spread over of this interest on accrual basis is not permissible.” 9. The Ld. counsels for assessee has further brought our attention the latest decision of the Hon'ble Supreme Court in the case of CIT Vs. Chet Ram (HUF) dated 12.9.2017 in Civil Appeal No.13053/2017 wherein also the Hon'ble Supreme Court has again reiterated the proposition laid down in the case of Ghanshyam (HUF) (supra), which we find has been further reiterated in the case of Union of India vs. Hari Singh & others in Civil Appeal No. 1504 of 2017 dated 15.9.2017, as under: “(2) While determining as to whether the compensation paid was for agricultural land or not, the Assessing Officer(s) will keep in mind the provisions of Section 28 of the Land Acquisition Act and the law laid down by this Court in 'Commissioner of Income Tax, Faridabad v. Ghanshyam (HUF)' [2009 (8) SCC 412] in order to ascertain whether the interest given under the said provision amounts to compensation or not.” 9.1 The said decision as rightly pointed out by the Ld. counsel for assessee have been rendered by the Hon'ble

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 8 Apex Court subsequent to the decision passed by the Hon'ble Jurisdictional High Court in the case of Manjeet Singh(HUF) (supra) which had dealt with the decisions of the Hon'ble Apex Court in Ghanshyam, HUF (supra). Therefore, in view of the same, the proposition laid down in Ghanshyam, HUF (supra) remains and which having been laid down by the Hon'ble Apex Court is the law of the land and has to be followed by all lower authorities. In view of the above, we hold that the interest received by the assessee during the impugned year on the compulsory acquisition of its land u/s 28 of the Land Acquisition Act, is in the nature of compensation and not interest which is taxable under the head income from other sources u/s 56 of the Act as held by the authorities below. The compensation being exempt u/s 10(37) of the Act is not disputed. In view of the same the order passed by the CIT(Appeals) upholding the addition made by the AO on account of interest on enhanced compensation is, not sustainable. The ratio of the order laid down vide order dt. 09/07/2018 in a group of cases in ITA No. 1413 to 1437/CHD/2016 would apply mutatis-mutandis to the core issue of taxability of interest received on enhanced compensation. 10. In view of the above discussion, these appeals of the assessees are hereby allowed. 5.8 In view of the above facts and the discussion in the foregoing paras, it is held that interest on enhanced compensation, received u/s 28 of the Land Acquisition Act by the appellant is in the nature of compensation and is exempt under the provision of Section 10(37) of the I.T. Act, placing reliance on the decisions of jurisdictional ITAT in Som Nath (supra) and Surinder Kumar (supra) wherein the Tribunal have relied on the decisions of the Hon'ble Apex Court in the case of Ghanshyam (HUF), Govindbhai Mamaiya and Hari Singh Ors. (supra) being the law of the land. Therefore, addition of Rs. 3,29,32,586/- made by the Assessing Officer u/s 56(2) (viii) of the I.T. Act, after deduction u/s 57(iv) of the Act being interest received by appellant u/s 28 of the Land Acquisition Act and forming part of enhanced compensation on acquisition of

ITA No. 175/Chd/2019- Shri Vaibhav Chaudhary, Fatehabad 9 agricultural land, is ordered to be deleted. It is not material whether the appellant assessee hid agreed to the taxing of the sum under Section 56(2)(viii) because there cannot be any admission against the statute and only correct income has to be brought to tax . This ground of appeal is allowed.”

. Though the Ld. DR relied on the findings of the Assessing Officer,

however, could not rebut the arguments of the Ld. counsel for the assessee that the issue is squarely covered by the above decision of the Hon'ble Supreme Court as well as of the Coordinate Bench of the Tribunal (supra).

In view of this, we do not find any merit in the appeal of the Revenue

and the same is accordingly dismissed.

Order pronounced in the Open Court on 30.10.2019.

Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member Dated : 30.10.2019 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar