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Income Tax Appellate Tribunal, SMC, CHANDIGARH
Before: MS. DIVA SINGH
PER DIVA SINGH, J.M.
The present appeal has been filed by the assessee assailing the correctness of the order dated 02/11/2016 of CIT-(A)-1, Amritsar (Camp at Palampur) H.P on various grounds.
The Ld. A R Submitted that the original grounds raised by the assessee may be substituted by the revised grounds filed as they clearly address the issues.
The Ld. Sr. DR considering the copy of the revised grounds stated that he has no objection if these are substituted as nothing new is stated therein. Accordingly substitution of grounds is permitted. These grounds read as under
That the appeal may be fully allowed and the year of indexation may be declared as the year of receiving the award amount. 2. That the said case property of the appellant may be declared as ancestral property and there is no tax chargeable on this property. 3. That the solatium may be declared as not taxable in the said case. 4. That the goodwill may be declared as not taxable in said case. 5. That appellants’ residential property u/s 54 of the Income Tax Act, 1961 may also be considered. 4. The relevant facts of the case are that the specific property being ancestral property of the assessee was acquired by Land Acquisition
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Officer Dam Bilaspur during the year 2000 – 0014 construction of KOL – Dam Hydel project in District Bilaspur. The additions made by the assessing officer were challenged in appeal before the CIT-A. The ld. AR submitted that at the time of hearing during the assessment proceedings, the assessee was a student studying in Bangalore and relevant documents could not be placed on record in view of the fact that he was not getting holidays from his college. It was also a common stand of the parties that the issue is covered by the order of the coordinate Bench dated 15.12.2017 in ITA 277/CHD/2017 in the case of Tara Gupta. Accordingly, it was a joint prayer that the same may be remanded to the AO.
I have heard the submissions and perused the material available on record it is seen that the assessing officer in the facts the present case required the assessee to justify the circumstances in which the assets had been acquired in terms of section 49 (1) the of the income tax act. The Assessee was also required to address the year of acquisition of the property and support its claim of carrying out improvements on the said property. In the absence of a proper explanation the assessing officer considering the total cost of acquisition and improvement at Rs. 3,14,745 to the previous owner and considering the fact that the benefit of indexation would be available to the assessee from the year in which the asset was first held by the current owner i.e. the assessee and the fact that the property was acquired by LAO Bilaspur on 19/12/2000 i.e. in 2000-01 and holding that the said property was transferred to the assessee from his grandfather in the same year in which it was acquired by the LAO Bilaspur he held that the benefit of indexation would not be available to the assessee. Consequently substracting the the said amount from the compensation received he added the same to the income of the assessee. Further considering the receipt of compensation on account of loss of earning/goodwill which had not been disclosed by the assessee in its return of income addition of the said amount was made by the assessing officer rejecting the explanation of the assessee. In its appeal before the CIT appeals the assessee partially succeeded leading to the filing of the present appeal. The said issue it is seen has been considered by coordinate Benches in various cases reference may be made to the order dated 15/12/2017 in ITA 207/CHD/2017 in the case of Smt. Tara Gupta versus ITO and order dated 13/10/2017 in ITA 1095/CHD/2014
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in the case of Smt. Radha Devi versus ITO. For ready reference the relevant extract from the order dated 15/12/2017 is reproduced hereunder: 8. The second issue agitated in the present appeal, it is seen, is addressed by the Co-ordinate Bench in paras 18 to 22 on facts, as considered in paras 14 to 17. The issue in the present proceedings has been considered by the AO in the following manner : "It has been established from the information gathered from the LAO, Bilaspur that the appellant was paid Rs. 6,75,000/- vide order dated 15.0.2008 towards compensation on account of loss of earning which she would have earned in the coming years by calculating the income @ Rs. 45.000/- p.a. for the 15 years. This payment was made by him on the application moved by her as already discussed earlier. Therefore, it is clear from the facts that her decrease in income has been compensated and hence I hold that this amount of Rs. 6,75,000/- is her normal business income received in the year 2007-08 relevant to the assessment year 2008-09. Hence, addition of Rs. 6,75,000/- is made on this account". The CIT(A) has held it to be a one time receipt and concluded that it 8.1 has to be taxed in the year under consideration even though it is compensation for earning of the next 15 years. I find that the said conclusion is in direct conflict with the conclusion drawn by the Co- ordinate Bench. Ld. AR has placed heavy reliance on the same stating that it has been held as a capital receipt distinct from the compensation received for acquisition of land and thus not taxable in the hands of the assessee. Reliance has been placed on the decision of the Apex Court in the case of Senairam Doongarmall Vs CIT (1961) 42 ITR 392 (S.C). Relevant finding from the order of the ITAT is extracted hereunder : “18. We have heard the contentions of both the parties. The issue before us pertains to determining the nature of the compensation received of Rs.11,25,000/- whether it was in the nature of compensation received for acquisition of the assessees property as held by the CIT(A) capital or was otherwise capital in nature not liable to be taxed as pleaded by the Ld.Counsel for the assessee. 19. The facts which are not disputed are that the assessee was the owner of a property built on land taken on lease by her from her husband for a period of 20 years and was running a guest house on the same. The period of lease remaining when the said property was acquired by the Government was 15 years. The assessee had been compensated for the acquisition of property to the tune of Rs.66,04,202/- and thereafter the assessee had requested the LAO to compensate her further for goodwill on account of discontinuation of her business, in response to which the assessee had filed copies of her Balance Sheet to the LAO to prove that she had been running a guest house on the said property and earning income of approximately Rs.75,000/- per year. The LAO had accepted the contentions of the assessee and directed that the assessee be compensated for her loss of yearly income which amounted in all to Rs.11,25,000/-. The relevant application of the assessee and the order of the LAO formed part of the Paper Book placed at pages 36 to 38. 20. What emerges from these facts is that the LAO had awarded the sum of Rs.11,25,000/- to the assessee as compensation for the loss of the income earning apparatus of the assessee. The Government having taken over/acquired the premises and the land on which the assessee was running her guest house, the assessee had been deprived of her income earning source and since the remaining lease for the guest house was 15 years, she had been deprived of her income earning apparatus for the next 15 years.
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Considering these facts the LAO had compensated her for the loss of her income earning apparatus. Such compensations received for loss of business on account of compulsory requisition of business assets has been held to be capital receipts by the Hon’ble Apex court in the case of Senairam vs CIT (1961) 42 ITR 392. The said receipt, therefore, is capital in nature and cannot be brought to tax in the hands of the assessee. 21. The contention of the Revenue that the same formed part of the consideration for the asset is totally off the mark. The compensation received by the assessee on account of the acquisition of the building formed part and was included in the award granted to the assessee, the amount of which was Rs.66,04,202/- only, as per the said sheet placed at Paper Book page No.26. The figure of Rs.11,25,000/- does not form part of the said sheet. In fact, as pointed out above, the LAO had awarded the sum as compensation for loss of income and, therefore, by no stretch of imagination the said amount can be said to be part of the compensation of acquisition of asset. 22. In view of the above we hold that the amount received amounting to Rs.11,25,000/-as compensation for loss of business was a capital receipt distinct from the compensation received for acquisition of land and thus not taxable in the hands of the assessee. Ground No.2 raised by the assessee therefore stands allowed.” 8.2 In the absence of any change in fact or position of law, ground No. 2 raised by the assessee in the present proceedings is allowed. 9. The next issue agitated by the assessee in the present proceedings vide ground Nos. 3 to 5 is found addressed in pages 6 and 7 of the impugned order. A perusal of the same shows that the specific property acquired consisted of first floor and second floor which was residential and hotel accommodation. Fifty percent of the building was treated as depreciable asset being used for hotel business and 50% as residential purposes. The AO treated the same as short term capital gain. The CIT(A) has upheld the said decision. The said issue, it is seen, has also been considered by the ITAT in the aforesaid decision. Conscious of the said decision, ld. AR nevertheless reiterated the 10. submissions before the authorities below. 10.1. The ld. Sr.DR relies on the order of the ITAT as well as the consistent orders of the Tax Authorities. 12. I have heard submissions and perused the material on record. I find that the Co-ordinate Bench after considering the identical submissions of the parties before the Bench proceeded to consider the issue vide paras 30 to 34 in following manner and also proceeded to consider ground No. 4 raised in the facts of that case vide paras 35 to 36 holding as under : 30. We have heard both the parties and perused the documents filed before us. We find no merit in the contention of the Ld. Counsel for assessee. It is an admitted fact that before the LAO the assessee had staked claim to be compensated for loss of its business income and as evidence of the same had filed Balance Sheet before the LAO showing that the impugned asset was its business asset and was being depreciated accordingly. The assessee in her application before the LAO had submitted that she was running a guest house in the said property and was earning income thereon. Even the LAO awarded compensation to the assessee of Rs.11,25,000/- for loss of Business income. All these facts,which have not been controverted by the assessee lead only to one logical conclusion, that the asset was the business asset of the assessee. The Revenue, therefore, has rightly held the capital gain earned thereon as Short Term Capital Gain earned on
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sale of business asset as per the provisions of section 50 of the Act and denied the assessee indexation on the cost of acquisition of the asset thereon. 31. The claim of the Ld. counsel for assessee that the said asset was not its business asset is based solely on the fact that it had never filed returns before the Income-tax Authorities claiming so. We find no substance in this argument of the Ld. counsel for assessee. Non filing of income tax return does not prove that the asset was not the business asset of the assessee. The non-filing of income tax return is in fact a default on the part of the assessee which has its own consequences but merely because the assessee does not file her income tax return does not mean that she has earned no taxable income at all. The non filing of Income Tax Return does not prove anything at all. 32. The Ld. counsel for the assessee has also contended that as per section 50 of the Act ,which treats capital gains earned in case of depreciable assets as short term capital gains, the capital asset should form block of capital assets on which depreciation has been “allowed” under the Act. The contention of the Ld.Counsel is that since no return has been filed by the assessee, the assessee has not claimed depreciation also and having not claimed depreciation, the same cannot be said to have been allowed to it also. 33. We do not find any merit in this contention of the assessee also. Firstly as per the assessees own claim before the LAO, the impugned asset i.e. the building ,is its business asset which is being depreciated year to year as reflected in the balance sheet filed before the LAO. Merely because no return has been filed by the assessee will not take away the admitted fact that the asset is a business asset of the assessee forming part of block of asset i.e. Building. Moreover depreciation “allowed” to the assessee cannot be read so as to mean that allowed after having been claimed by the assessee. Explanation 5 to section 32(1) ,which deals with allowability of depreciation ,states depreciation will be allowed as per the provision of section 32 whether or not the assessee has claimed the deduction while computing its income. Therefore actual claim by the assessee is not required even by statute for allowing it. 34. We, therefore, hold that the capital gain earned on compulsory acquisition of the property has been rightly held to be Short Term Capital Gain and has been correctly computed at Rs.56,50,290/- after denying the indexation on the cost of the acquisition. Ground No.3 raised by the assessee is, therefore, dismissed. 35. Ground No.4 raised by the assessee reads as under: “4. That in the facts and circumstances of the case the Ld Commissioner of Income Tax (Appeals) in not allowing deduction under section 54F/54D of the Income Tax Act, 1961. The same is very much allowable in the eyes of law.” 36. The above ground was not pressed before us and is, therefore, dismissed as not pressed. In effect, the appeal of the assessee stands partly allowed.” 12.1 In the absence of any change in facts or circumstances or the position of law, respectfully following the order of the Co-ordinate Bench, the said grounds of the assessee are dismissed. Said order was pronounced in the Open Court at the time of hearing itself. 13. In the result, appeal of the assessee is partly allowed. 5.1 Accordingly in the light of the submissions of the parties before the Bench it is deemed appropriate to set aside the impugned order back to the file of the assessing officer with a direction to take into consideration the
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directions of the coordinate benches wherein identical issues have come up for consideration and thereafter to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The assessee considering the peculiar facts and circumstance of the present case is permitted to file fresh evidences if it so desires. While so remanding it is made clear that the assessee shall ensure its participation fully and fairly before the assessing officer and shall not abuse the trust reposed in it as failing which the assessing officer would be at liberty to pass a speaking order on the basis of material available on record. Said order was pronounced in the open court at the time of hearing itself.
In the result the appeal of the assessee is allowed for statistical purposes
Order pronounced in the Open Court on 12th March,2018.
Sd/- (DIVA SINGH) JUDICIAL MEMBER Dated : AG/Poonam Copy to: The Appellant The Respondent The CIT The CIT(A) The DR
Asstt. Registrar ITAT Chandigarh