SHRI. SANAULLA A KHAN,BANGALORE vs. INCOME TAX OFFICER, WARD- 1(2)(4), BANGALORE

This appeal by the assessee is directed against the order of the CIT(Appeals)-12, Bengaluru for the assessment year 2012-13.

The first issue raised in this appeal is that the CIT(Appeals) erred in confirming the addition of RS.26,50,000 invoking section 69 of the Income- tax Act, 1961 [the Act] without appreciating the facts and circumstances of the case as regards the source of payment which was paid through the Bank account.

The brief facts of the case are that the assessee purchased a property situated at No 20 (old No 25 & 30) 5th cross, 1st Main, Chamarajpet, Mysore Road Cross, Bangalore, for a sum of Rs. 34,50,000. For the purchase of the same he had sufficient and adequate source of income from which the payment of Rs. 26,50,000 was made. Hence it was stated that the tax liability corresponding to the addition of Rs. 26,50,000/- is not justifiable under law on mere notion that the property is not shown in the balance sheet dated 31.03.2012 even though it is not business asset.

The AO was of the view that as per the balance sheet submitted by the assessee the borrowed loan of Rs. 12,35,245 from ICICI Bank @ 13.50% was taken for business purpose, not for the purpose of housing. Hence it cannot be treated to have been invested in property. Also as per the personal capital account and balance sheet, the drawing is only Rs. 8,00,000/- out of capital of Rs. 1,65,65,547. Because of the fact that in spite of assessee having enough capital, but did not utilize it for the purpose of investment in the property, only Rs. 8,00,000 was treated as for the purpose of investment and the balance of Rs. 26,50,000/- was treated as unexplained investment and brought to tax by the AO.

On appeal, the CIT(Appeals) confirmed the addition made u/s 69 of the Act. Against this, the assessee is in appeal before us.

We have heard both the parties and perused the material on record. The contention of the ld. AR is that the assessee’s property situated in Ranasinghpet, BVK Iyengar Road, Bangalore was acquired by the Special Land Acquisition Officer [SLAO] for Bengaluru Metro and the assessee received a sum of Rs.1,24,48,356 (shown as Rs.1,23,28,356 in Form 26AS) as a compensation from the authorities. Out of this, a sum of Rs.1,10,95,520 was credited ON 25.07.2011 to the assessee’s bank account with ICICI Bank, OTC Road, Nagarthapet, Bangalore – 560002.

In our opinion, the source of payment of Rs.34.50 lakhs is out of compensation received towards acquisition of property by BMRCL and this was duly disclosed by the assessee. These receipts and payments were duly reflected in the ICICI Bank’s Current A/c No.6251050390981, OTC Road, Bangalore – 560 002. As such, it cannot be considered as unexplained investment by the assessee. Accordingly, we delete the addition made by the AO and sustained by the CIT(Appeals) u/s. 69 of the Act. This ground of the assessee is allowed.

The next issue for consideration is addition of capital gain of Rs.42,87,532 without appreciating the fact that the compensation was received by Metro Railway authorities.

The brief facts are that the property situated in Ranasinghpet, BVK Iyengar Road, Bangalore was acquired by the SLAO for a consideration of Rs.1,24,48,356 and after claiming deduction indexed cost of acquisition of Rs.81,60,824 and indexed cost of improvement of Rs.39,24,288, the long term capital gain came to Rs.3,63,244.

The ld. AR submitted that the assessee has received the compensation of Rs. 1,24,48,356 from the Metro Railway Authorities for having acquired his property situated at B.V.K lyengar Road, Bangalore for Metro Rail Project. The computation of capital gains by AO at Rs. 42,87,532 out of the compensation received by the Metro Railway Project is liable to be deleted as per the Circular by the CBDT No. 36/2016 dated 25.10.2016, which is as follows:- “It is hereby clarified that compensation received in respect of award or agreement which has been exempted from levy of Income Tax vide section 96 of the RFCTLARR Act Shall also not be taxable under the provisions of Income Tax Act, 1961 even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961.”

The ld. DR submitted that assessee has not submitted any proof that the land is acquired by Metro Railway Authorities. He submitted that though CBDT Circular No.36/2016 mandates that compensation received by the land owners for acquisition of land under the RFCTLAAR Act is exempt from tax, however, assessee has not produced the proof with reference to the same. He therefore supported the order of the CIT(Appeals).

We have heard both the parties and perused the material on record. The assessee’s property situated at B.V.K. Iyengar Road, Bangalore was acquired by BMRCL. Consequently, for the assessment year under consideration, the assessee received an amount of Rs.1,23,28,356 which was duly reflected in Form 26AS in the name of assessee. The AO duly considered this amount while giving TDS credit of Rs.12,32,836. In spite of this, the CIT(Appeals) observed that the assessee has not furnished the proof that land is acquired by BMRCL. In our opinion, when the name of BMRCL was mentioned in Form 26AS showing the details of TDS on payment for acquisition of said property, it cannot be doubted that BMRCL has not acquired the said property. In our opinion, the compensation received by the assessee from BMRCL is exempt from tax in view of CBDT Circular No.36/2016 dated 25.10.2016. Accordingly, the compensation received by the assessee on acquisition of the property by BMRCL is not liable for capital gain. This ground of the assessee is allowed.

In the result, the appeal by the assessee is allowed.