SPECIAL LAND ACQUISITION OFFICER,BURDWAN vs. ITO, WD-4(2), BURDWAN, BURDWAN

IN THE INCOME TAX APPELLATE TRIBUNAL “B”, BENCH KOLKATA

BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA Nos.1280 to 1285/Kol/2016 (�नधा�रणवष� / Assessment Years: 2009-10 to 2014-15) Special Land Acquisition Vs. I.T.O, Wd-4(2), Burdwan Officer, Burdwan Aayakar Bhawan, Court Compound, BDA Guest House, Badamtala, Burdwan – 713101. Burdwan – 713101. �थायीलेखासं./जीआइआरसं./PAN/GIR No. :CALS 16006 E (Assessee) .. (Respondent)

Assessee by :Shri Soumitra Choudhury, Adv. Respondent by :Shri S. Dasgupta, Addl. CIT(DR) सुनवाईक�तार�ख/ Date of Hearing : 14/03/2018 घोषणाक�तार�ख/Date of Pronouncement : 25/04/2018 आदेश / O R D E R Per Bench: The captioned six appeals filed by the Assessee, pertaining to Assessment Years 2009-10, 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15, are directed against the orders passed by the ld. Commissioner of Income Tax(Appeals)-Burdwan, which in turn arise out of assessment orders passed by the Assessing Officer under section201(1)/201(1A)of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’). 2.Since, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard altogether and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in ITA No.1281/Kol/2016, for assessment Year 2010-11, have been taken into consideration for deciding the above appeals en masse. 3.However, in these six appeals, the assessee have raised multiple grounds of appeals, but at the time of hearing the solitary grievance of

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15 the assessee has been confined to the issue of applicability of section 194LA of the Act for non-deduction of TDS on compensation and additional compensation paid by the assessee to acquire Agricultural Land and, thereafter, the application of provisions of interest upon such non-deduction.

4.The brief facts qua the issue are that the assesseedeductor, Special Land Acquisition Officer, Burdwan is a deductor, and functioning under the Government of West Bengal. The assesseedeductor made payments during the year under consideration to the respective land owners against acquisition of land for the purpose of construction of Andal Airport, Extension/New construction of national highway etc. throughout the district of Burdwan. The assesseedeductor made payments, being in the nature of compensation or the enhanced consideration on account of compulsory acquisition, under any law for the time being in force, of any immovable property (other than agricultural land). The Assessing Officer noted that these payments attracted the provisions of section 194LA of the Income Tax Act for payments to an amount to a person exceeding Rs.1,00,000/- in aggregate during the Financial Year 2009-10.

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15 the compensation or enhanced compensation were paid by the assesseedeductor would fall under the TDS provisions of section 194LA of the Act. After examination of the books (Award Registers), the Assessing Officer worked out the TDS u/s 194LA @10% which is given below:

Sl Month Amount of Payments TDS u/s 194LA @10% (a) (b) (c) (d) 1 June,2009 5,29,549 52,955 2 July,2009 6,07,544 60,754 3 Ausust,2009 22,66,581 2,26,658 4 September, 2009 9.51.249 95,125 5 October, 2009 47,33,678 4,73,368 6 November,2009 50,32,026 5,03,203 7 December,2009 29,38,824 2,93,882 8 January, 2010 18,75,849 1,87,585 9 February, 2010 16,07,913 1,60,791 10 March, 2010 14,82,329 1,48,233 Total 2,20,25,542 22,02,554

The Assessing Officer noted from the examination of books (Award Registers) that assesseedeductor made payments of Rs.2,20,25,542/- without making any TDS. The Assessing Officer found that assesseedeductor has not filed any reasonable submissions and there was no reasonable cause not to deduct TDS and, therefore, he noted that inspection was carried out on 27.06.2013 and assesseedeductor get a base information regarding his liability and the assesseedeductor failed to make TDS u/s 194LA of the Act and, therefore, the Assessing Officer held that ignorance of law cannot be a matter of excuse. During the proceedings, the assesseedeductor submitted that he was not aware of the TDS provisions and his predecessors have not guided him.The assesseedeductoralso replied to the Assessing Officer stating that “there is no gainsay about the rules of deducting TDS from Awardees is not known to me and I beg no excuse for this. But, this may be stated that since my joining as Special Land Acquisition Officer, Burdwan on 05/09/2012 my predecessors have not guided me in this matter. It has also been learnt that the office was quite in dark about TDS from awardees (except Agricultural land.)”. The Assessing Officer rejected the contention of the assessee and held that since the assesseedeductor neither made any TDS nor deposited any TDS in the Central Government account relating to the payments falling Page | 3

Special Land Acquisition Officer, Burdwan Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009 Assessment Years: 2009-10 to 2014-15 within the purview of section 194LA, therefore, the assesseedeductor is also within the purview of section 194LA, therefore, the assesseedeductor is also within the purview of section 194LA, therefore, the assesseedeductor is also liable to pay simple interest @1% within the pu liable to pay simple interest @1% within the purview of section 201(1)/201(1A) rview of section 201(1)/201(1A) of the Act. Therefore, the Assessing Officer computed the TDS payable and of the Act. Therefore, the Assessing Officer computed the TDS payable and of the Act. Therefore, the Assessing Officer computed the TDS payable and interest payment as follows: interest payment as follows:

This way, the Assessing Officer computed the net demand payable This way, the Assessing Officer computed the net demand payable This way, the Assessing Officer computed the net demand payable by assessee, consisting TDS under section 194LA and in assessee, consisting TDS under section 194LA and interest under section terest under section 201(1)/201(1A) to the tune of 201(1)/201(1A) to the tune of Rs.35,90,883/-.

6.Aggrieved by the stand so taken by the Assessing Officer, the assessee .Aggrieved by the stand so taken by the Assessing Officer, the assessee .Aggrieved by the stand so taken by the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) after carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) after carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) after elaborately reproducing the written sub elaborately reproducing the written submissions of the assessee and having missions of the assessee and having discussed the provisions of section 194LA concluded that assessee was liable discussed the provisions of section 194LA concluded that assessee was liable discussed the provisions of section 194LA concluded that assessee was liable to deduct TDS u/s 194LA @10% to deduct TDS u/s 194LA @10% and confirmed the action of the assessing and confirmed the action of the assessing officer.

7.Not being satisfied with the order of the ld. CIT(A), the ass .Not being satisfied with the order of the ld. CIT(A), the ass .Not being satisfied with the order of the ld. CIT(A), the assessee is in appeal before us. The ld. Counsel for the assessee has submitted before us that before us. The ld. Counsel for the assessee has submitted before us that before us. The ld. Counsel for the assessee has submitted before us that Special Land Acquisition Officer acquired the land for the purpose of Special Land Acquisition Officer acquired the land for the purpose of Special Land Acquisition Officer acquired the land for the purpose of construction of Andal Airport, Extension/New construction of National Highway construction of Andal Airport, Extension/New construction of National Highway construction of Andal Airport, Extension/New construction of National Highway etc. throughout the district of Burdwan and for that purpose, the Special Land the district of Burdwan and for that purpose, the Special Land the district of Burdwan and for that purpose, the Special Land Page | 4

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15 Acquisition Officer paid the compensation to the agriculturists from whom he purchased the land. The ld.Counsel Stated that the entire land, which are acquired by the assessee, is agricultural land except a very negligible land which is used for Homestead. That is, 99% land is an agricultural land and to support his plea, he drew our attention to the classification of land which has been acquired by the assesseedeductor, details of which are given below:

Agricultural Land (irrigated) 12.285 acres Unused vacant rural land 0.340 acres Water bodies 1.400 acres Homestead 0.995 acres Public utility land in rural areas 0.750 acres ___________ 15.770 acres

The ld Counsel stated that Homestead land has also been classified as Agricultural Land by West Bengal Government, therefore the 99% land belongs to agricultural land and non-agricultural land is only 0.995% acres relating to Homestead, which has also been classified in the nature of agricultural land, therefore, the question of deduction of TDS under section 194LA does not arise. The ld. Counsel also pointed out that the said agricultural land was purchased by the assessee in pursuance of the notification of Government of India which is given below:

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15

Therefore, ld. Counsel for the assessee has submitted before us that it is evidently clear that the said land was acquired by the Special Land Acquisition Officer in pursuance of the notification of the Government, details of which are mentioned above and it is also established that the said land belongs to agricultural land except to a small piece of land at 0.995 acres which is used for Homestead. Since 99% land acquired by the assessee belongs to agricultural land, therefore, the assessee was not required to deduct TDS u/s 194LA of the Act.

9.We have given a very careful consideration to the rival submissions and perused the materials available on record, we note that from the Gazette of India, it is evidently clear that Special Land Acquisition Officer (assessee) has acquired the said land which belongs to agriculturists. In the Gazette of India, mentioned in para No. 7 of our order, the nature of land is mentioned as “Agriculture”, therefore 99% land relates to ‘Agriculture’. About the Homestead land of 0.995 acres, the Counsel for the assessee submitted before us that Homestead land has also been classified as Agricultural land by West Bengal Government and the ld DR for the Revenue has fairly agreed with the proposition of the ld Counselthat Homestead land of 0.995 acres, does fall in the definition of ‘Agriculture land’.

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15 10.We note that since it is an agricultural land, therefore, provisions of section 194LA of the Act, to deduct TDS,does not apply to the assessee under consideration. The provisions of section 194LA are applicable for other than agricultural land. At this juncture, it is appropriate to quote the relevant provisions of section 194LA which reads thus:

“Section 194LA:-Payment of compensation on acquisition of certain immova- ble property. Any person responsible for paying to a resident any sum, being in the nature of compensation or the enhanced compensation or the consideration or the enhanced consideration on account of compulsory acquisition, under any law for the time being in force, of any immovable property (other than agricultur- al land), shall, at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to ten per cent of such sum as income-tax thereon”.

It is abundantly clear from the provisions of section 194LA, mentioned above that TDS obligation does not arise if the payment is made to the Agriculturists on account of compulsory acquisition of agricultural land. We note that from the Gazette of India that 99% of the acquired land is an agricultural land, therefore, provisions of section 194LA does not apply to the assessee under consideration. We note that admittedly, the value of compensation or enhanced compensation was recorded in the Books (Award Registers) of the assessee along with the nature of land for which such compensation or enhanced compensation was awarded and Homestead land also falls in the definition of agricultural land. Therefore, based on the factual position explained above, we are of the view that provisions of section 194LA do not apply to the assessee under consideration and therefore we quash the order passed by the Assessing Officer u/s 201(1)/201(1A) of the I.T. Act.

Since the facts and circumstances in the lead case under consideration, being ITA No. 1281/Kol/2016, for A.Y. 2010-11 are identical to those considered in ITA Nos.1280, 1282,1283,1284, and 1285, therefore our decision in the case of ITA No. 1281/Kol/2016, for A.Y. 2010-11 of assessee`s appeal shall apply

Special Land Acquisition Officer, Burdwan ITA Nos.1280 to 1285/Kol/2016 Assessment Years: 2009-10 to 2014-15 mutatis mutandis in the case of ITA Nos.1280, 1282,1283,1284, and 1285 also. Accordingly, these six appeals to the assessee are allowed.

Order is pronounced in the open court on 25/04/2018.

Sd/- Sd/- (A. T. VARKEY) (A. L. SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Date: 25/04/2018 (RS, SPS) आदेशक���त�ल�पअ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ�/ The Assessee- Special Land Acquisition Officer, Burdwan 2. ��यथ�/ The Respondent-I.T.O, Wd-4(2), Burdwan 3. आयकरआयु�त(अपील) / The CIT(A), 4. आयकरआयु�त/ CIT 5. �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, कोलकाता/ DR, ITAT, Kolkata 6. गाड�फाईल / Guard file. स�या�पत��त