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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.552/Chd/2016 (Assessment Year : 2008-09) Som Nath, Vs. The Income Tax Officer, Opposite Gaba Hospital, Ward-2, Tehsil Jagadhri, Yamuna Nagar, Yamuna Nagar. PAN: AGSPN6792L (Appellant) (Respondent)
Appellant by : Shri Ashwani Kumar, CA & Shri Aditya Kumar, CA Respondent by : Smt.Chanderkanta, Addl.CIT DR Date of hearing : 16.07.2018 Date of Pronouncement : 17.07.2018
ORDER PER ANNAPURNA GUPTA, AM:
This appeal has been preferred by the assessee against
the order of learned Commissioner of Income Tax (Appeals),
Panchkula (hereinafter referred to as CIT(Appeals)) dated
29.3.2016 relating to assessment year 2008-09.
Earlier this appeal of the assessee was dismissed by
this Tribunal in limine for non prosecution vide order dated
2.8.2017, which was recalled by the Tribunal vide order
dated 16.1.2018 in M.A.No.96/Chd/2017 In pursuance of
the same, the present appeal has been heard.
Grounds of appeal raised by the assessee read as
under:
“(1). That learned Commissioner of Income-Tax (Appeal) gravely erred on facts and law in upholding order passed by Assessing Officer liable to tax on 'interest' received on enhanced compensation awarded under section 28 of the Land Acquisition in respect of his agricultural land and ignoring the law laid down in Commissioner of Income-tax, Faridabad v. Ghanshyam (HUF) 315 ITR 1 (SC) that "interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act"; (2). That the demand determined upon the appellant on account of the tax as also the interest charged was liable to be quashed and so the observations that the appellant was liable to be proceeded against under section 271(l)(c) of the Income-tax Act, 1961; (3). That learned CIT (Appeals) failed to consider submissions urged before him and that the impugned order discloses non- application of mind; (4) That the appellant reserves right to modify or add to any other ground of appeal.” 3. The sole issue in the present appeal is whether the
compensation received by the assessee on account of
compulsory acquisition of its land was in the nature of
interest taxable u/s 56 of the Income Tax Act, 1961 (in
short ‘the Act’) or was in the nature of compensation which
was exempt from capital gain tax u/s 10(37) of the Act.
Briefly stated, the assessee is a property dealer who
had filed his return of income declaring income at
Rs.36,749/- which was assessed at Rs.1,50,750/- u/s
143(3) of the Act. Thereafter the CIT, Panchkula passed an
order u/s 263 of the Act canceling the assessment order
passed, on finding that the assessee had received
compensation on the compulsory acquisition of his
agricultural land from the Land Acquisition Officer, Urban
Estate, Panchkula amounting to Rs.9,46,356/- which
included interest of Rs.3,99,156/- and which amount was
taxable in the impugned year. Subsequently, in pursuance
to the directions of the CIT the Assessing Officer completed
assessment u/s 143(3) of the Act making addition of the
impugned interest of Rs.3,99,156/- as interest taxable u/s
56 of the Act.
Before the Assessing Officer, the assessee had
contended that the interest had been received u/s 28 of the
Land Acquisition Act, 1894 and was, therefore, part of
compensation liable to be taxed u/s 45(5) of the Act and
was exempt from capital gain tax u/s 10(37) of the Act. The
assessee relied upon the decision of the Hon'ble Apex Court
in the case of CIT Vs. Ghanshyam (HUF) (2009) 115 ITR 1 in
support of its pleadings that the interest received u/s 28 of
the Land Acquisition Act, 1894 was in the nature of
compensation and not interest. The Assessing Officer
dismissed the contention of the assessee relying upon the
decision of the Hon'ble Jurisdictional High Court in the
case of CIT Faridabad Vs. Bir Singh HUF in ITA No.209 of
2004 dated 27.10.2010. The CIT(Appeals) also stated that
the Assessing Officer had rightly followed the decision of
the Hon'ble Jurisdictional High Court in the case of Bir
Singh HUF (supra) which had been followed by the Hon'ble
Jurisdictional High Court in the case of Manjeet Singh
(HUF) Karta Vs. Union of India in CWP No.15506 of 2013
dated 14.1.2014. The CIT(Appeals) pointed out that in the
decision of Manjeet Singh (supra), the Hon'ble
Jurisdictional High Court had considered the decision of
the Hon'ble Apex Court in the case of Ghanshyam, HUF
(supra) and after considering the same had held that the
interest received u/s 28 of the Land Acquisition Act, 1894
was in the nature of interest taxable u/s 56 of the Act. The
Ld.CIT(Appeals) further noted that the SLP filed against the
aforesaid decision of the Hon'ble Jurisdictional High Court
in the case of Manjeet Singh (HUF) (supra) had been
dismissed by the Hon'ble Apex Court. The CIT(Appeals),
therefore, upheld the order of the Assessing Officer
subjecting the interest received by the assessee on
enhanced compensation to tax in the impugned year.
Aggrieved by the same, the assessee has come up in
appeal before us. During the course of hearing before us the
Ld. counsel for assessee stated that the decision of the
Hon'ble Apex Court in the case of Ghanshyam, HUF (supra)
had been reiterated by the Hon'ble Apex Court in the case
of CIT Vs. Gobind Bhai Mamaiya, 367 ITR 498 and further
in the case of Union of India & Others Vs. Hari Singh &
Others in Civil Appeal No.1504 of 2017 dated 15.9.2017.
The Ld. counsel for assessee pointed out that the aforesaid
decisions were rendered by the Hon'ble Apex Court
subsequent to the decision of the Hon'ble Jurisdictional
High Court in the case of Manjeet Singh(HUF) (supra) which
was passed on 14.1.2014 and was also subsequent to the
dismissal of SLP by the Hon'ble Apex Court in the case of
Manjeet Singh(HUF) (supra) vide order dated 18.12.2014.
The Ld. counsel for assessee, therefore, stated that the
decision in the case of Ghanshyam, HUF (supra) would
apply to the present assessee.
The Ld. DR though conceded that the decision of the
Hon'ble Apex Court had been affirmed in the subsequent
decisions passed by it, but stated that the decision passed
by the Hon'ble Jurisdictional High Court in the case of
Manjeet Singh(HUF) (supra) would apply and he relied upon
the order of the CIT(Appeals) in this regard.
We have heard the contentions of both the parties,
perused the records and also gone through the documents
placed before us. We find merit in the contention raised by
the assessee. Undisputedly the interest amounting to
Rs.3,99,156/- had been received u/s 28 of the Land
Acquisition Act, 1894. We find that the nature of the said
interest and its taxability had been settled by the Hon'ble
Apex Court in its decision in the case of Ghanshyam, HUF
(supra) which has been reiterated by the apex court in the
case of Gobind Bhai Mamaiya (supra) and Hari Singh &
Others (supra) ,holding the same to be in the nature of
compensation taxable as such. In the case of Gobind Bhai
Mamaiya (supra) the Hon'ble Apex Court has reiterated its
findings in the case of Ghanshyam, HUF (supra) stating so
as under:
“Insofar 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 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.” which we find has been reiterated in the case of Hari Singh
& Others (supra) 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. The said decision as rightly pointed out by the Ld.
counsel for assessee have been rendered by the Hon'ble
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.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 17th July, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh