Sh. Krishna Kumar Sharma, Mathura v. DCIT., Circle-1(3), Mathura

ITA 173/AGR/2019 | 2014-2015
Pronouncement Date: 10-03-2021 | Result: Dismissed

Appeal Details

RSA Number 17320314 RSA 2019
Assessee PAN AMHPS7924A
Bench Agra
Appeal Number ITA 173/AGR/2019
Duration Of Justice 1 year(s) 9 month(s) 17 day(s)
Appellant Sh. Krishna Kumar Sharma, Mathura
Respondent DCIT., Circle-1(3), Mathura
Appeal Type Income Tax Appeal
Pronouncement Date 10-03-2021
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 10-03-2021
Assessment Year 2014-2015
Appeal Filed On 22-05-2019
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE : SHRI LALIET KUMAR JUDICIAL MEMBER AND DR. MITHA LAL MEENA ACCOUNTANT MEMBER ITA NO.173/AGRA/2019 ASSESSMENT YEAR: 2014-15 SHRI KRISHNA KUMAR SHARMA 101 MAYUR VIHAR MATHURA. PAN: AMHPS7924A (APPELLANT) VS. DCIT CIRCLE 1(3) MATHURA. (RESPONDENT) APPELLANT BY SH. ANURAG SINHA ADV. RESPONDENT BY SMT. SITA SRIVASTAVA SR. DR ORDER PER LALIET KUMAR J.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER DATED 25.03.2019 OF LD. CIT(A)-I AGRA FOR THE ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS : 1. BECAUSE UPON DUE CONSIDERATION OF FACTS AND IN OVERALL CIRCUMSTANCES OF THE CASE APPELLANT' DENIES ITS LIABILITY TO BE ASSE SSED IN TERMS OF NOTICE DATED 07.11.2017 SAID TO BE ISSUED UNDER SECTION 156 OF T HE 'ACT'. 2. BECAUSE UPON DUE CONSIDERATION OF THE MA TTER THE LD. 'CIT(A)' WAS NOT JUSTIFIED IN O FACTS AND IN LAW TOO HOLDING THAT 'N ATURE OF RECTIFICATION SOUGHT BY HIM IS NOT WITHIN THE DOMAIN OF SECTION 154 OF THE ACT AS IT IS NOT MISTAKE APPARENT FROM RECORDS' WHICH FINDING IS UNCALLED FO R HAVING BEEN RECORDED AFTER ADJUDICATING THE CLAIM ON MERITS. 3. BECAUSE WHILE DECIDING THE APPEAL LD. CIT( A) HAS TOTALLY OMITTED TO CONSIDER THAT APPELLANT' IS ENTITLED FOR DEDUCTION UNDER SECTION 10(37) OF THE DATE OF HEARING 08.03.2021 DATE OF PRONOUNCEMENT 10 .03.2021 ITA NO. 173/AGRA/2019 2 INCOME TAX 'ACT 'AND ALL THE ESSENTIAL OF SECTION 10 (37) ARE FULLY MET BY THE 'APPELLANT' AND THEREFORE THE COMPENSATION RECEIVE D BY THE 'APPELLANT' CANNOT BE SUBJECTED TO TAX. 4. BECUSE THE LD. 'CIT(A)' HAS WRONGLY HELD T HAT 'APPELLANT' IS NOT ENTITLED TO EXEMPTION FROM LEVY OF CAPITAL GAIN UNDER SECTION 4 5(5) OF THE 'ACT' AS THE INCOME FAILING TO TAKE NOTE OF THE FACT THAT COMPEN SATION WAS RECEIVED ON 31.03.2014 AFTER THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION REHABILITATION AND RESETTLEMENT ACT 2 013 (HEREINAFTER REFERRED TO AS THE 'RFCTLARR' ACT) CAME INTO FORCE WITH EFFECT F ROM 01 JANUARY 2014 AND SUCH COMPENSATION AS PER SECTION 24 OF THE 'RFCTLARR ' ACT SHALL BE DEEMED TO HAVE BEEN RECEIVED UNDER THE SAID ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT ORD ER IN THE CASE OF ASSESSEE WAS PASSED ON 20.09.2016 AT THE RETURNED INCOME OF RS.2 77 06 520/- WHICH INCLUDED A SUM OF RS.2 71 31 104/- AS LONG TERM CAP ITAL GAIN ARISING OUT OF ACQUISITION OF ASSESSEES LAND BY NATIONAL HIGHWAY AUTHORITY OF INDIA. SUBSEQUENTLY THE ASSESSEE MOVED AN APPLICATION U/S. 154 BEFORE T HE ASSESSING OFFICER ALONGWITH CBDT CIRCULAR NO. 36/2016 CLAIMING THAT THERE WAS N O TAX LIABILITY ON THE ACQUISITION OF LAND BY GOVT. AUTHORITY UNDER RFCTAA R ACT. THE ASSESSING OFFICER REJECTED THE CLAIM OF ASSESSEE ON THE PREMISE THAT WHEN THE ASSESSMENT ORDER WAS PASSED ON 20.09.2016 THE CBDT CIRCULAR DATED 25.10 .2016 WAS NOT IN EXISTENCE AND THAT THE LAND OF ASSESSEE WAS ACQUIRED ON 05.02.201 3 WHILE THE PROVISIONS OF RFCTAAR ACT WERE MADE EFFECTIVE FROM 01.01.2014. TH E APPEAL FILED BY THE ASSESSEE AGAINST THE SAID ORDER STOOD DISMISSED BY LD. CIT(A ) OBSERVING THAT THE RECTIFICATION SOUGHT BY ASSESSEE BEFORE THE ASSESSING OFFICER WAS NOT A MISTAKE APPARENT ON THE FACE OF RECORD. ITA NO. 173/AGRA/2019 3 3. THE LD. AR SUBMITTED THAT THE CIT(A) WAS NOT JUS TIFIED TO CONSIDER THE CONTENTION OF THE ASSESSEE THAT THE SUM RECEIVED BY THE ASSESSEE AS A RESULT OF COMPULSORY ACQUISITION OF LAND AMOUNTING TO RS.2 77 06 520/- WAS ERRONEOUSLY AND IGNORANTLY OFFERED TO TAX DUE TO LACK OF KNOWLEDGE WHILE THE COMPENSATION SO RECEIVED WAS EXEMPT FROM TAX. IT WAS FURTHER SUBMIT TED THAT NO TAX SHOULD BE COLLECTED OR LEVIED WITHOUT ANY AUTHORITY OF LAW; T HAT THE COMPENSATION WAS RECEIVED BY APPELLANT ON 31.03.2014 AFTER THE RFCTL ARR ACT CAME INTO FORCE. THE LD. COUNSEL FOR ASSESSEE RELIED UPON VARIOUS DECISI ONS AS REPRODUCED IN ASSESSEES WRITTEN SUBMISSIONS BY THE LD. CIT(A). 4. THE LD. DR HAS DISPUTED THE SUBMISSIONS MADE BY THE LD. AR FOR THE ASSESSEE ORALLY AS WELL AS BY WRITTEN SUBMISSIONS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS CLEAR THAT THE LAND IN Q UESTION WAS ACQUIRED BY NATIONAL HIGHWAY AUTHORITY OF INDIA ON 05.02.2013 UNDER THE NATIONAL HIGHWAY AUTHORITY ACT 1856. WHEN THE AWARD WAS PASSED ACQUIRING THE LAND THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION R EHABILITATION AND RESETTLEMENT ACT 2013 (RFCTAAR ACT) CAME INTO FORC E WITH EFFECT FROM 1 ST JANUARY 2014 AND THE COMPENSATION AS MENTIONED IN FORM 16A WAS GIVEN TO THE ASSESSEE ON 01.01.2014. SECTION 3G OF THE NATIONAL HIGHWAYS ACT 1956 PROVIDES AS UNDER : ITA NO. 173/AGRA/2019 4 (3G)DETERMINATION OF AMOUNT PAYABLE AS COMPENSATIO N. (1) WHERE ANY LAND IS ACQUIRED UNDER THIS ACT THER E SHALL BE PAID AN AMOUNT WHICH SHALL BE DETERMINED BY AN ORDER OF THE COMPETENT AUTHORITY. (2) WHERE THE RIGHT OF USER OR ANY RIGHT IN THE NAT URE OF AN EASEMENT ON ANY LAND IS ACQUIRED UNDER THIS ACT THERE SHALL BE PAID AN AMOUNT TO THE OWNER AND ANY OTHER PERSON WHOSE RIGHT OF ENJOYMENT IN THAT LAND HAS BEEN AFFECTED IN ANY MANNER WHATSOEVER BY REASON OF SUCH ACQUISITION AN AMOUNT CALCULATED AT TEN PER CENT OF THE AMOUNT DE TERMINED UNDER SUB- SECTION (L) FOR THAT LAND. (3) BEFORE PROCEEDING TO DETERMINE THE AMOUNT UNDER SUB-SECTION (1) OR SUB-SECTION (2) THE COMPETENT AUTHORITY SHALL GIVE A PUBLIC NOTICE PUBLISHED IN TWO LOCAL NEWSPAPERS ONE OF WHICH WIL L BE IN A VERNACULAR LANGUAGE INVITING CLAIMS FROM ALL PERSONS INTERESTE D IN THE LAND TO BE ACQUIRED. (4) SUCH NOTICE SHALL STATE THE PARTICULARS OF THE LAND AND SHALL REQUIRE ALL PERSONS INTERESTED IN SUCH LAND TO APPEAR IN PERSON OR BY AN AGENT OR BY A LEGAL PRACTITIONER REFERRED TO IN SUB-SECTION (2) OF SECTION 3C BEFORE THE COMPETENT AUTHORITY AT A TIME AND PLACE AND TO STA TE THE NATURE OF THEIR RESPECTIVE INTEREST IN SUCH LAND. (5) IF THE AMOUNT DETERMINED BY THE COMPETENT AUTHO RITY UNDER SUB- SECTION (1) OR SUB-SECTION (2) IS NOT ACCEPTABLE TO EITHER OF THE PARTIES THE AMOUNT SHALL ON AN APPLICATION BY EITHER OF TH E PARTIES BE DETERMINED BY THE ARBITRATOR TO BE APPOINTED BY THE CENTRAL GOVERNMENT. (6) SUBJECT TO THE PROVISIONS OF THIS ACT THE PROV ISIONS OF THE ARBITRATION AND CONCILIATION ACT 1996 (26 OF 1996) SHALL APPLY TO EVERY ARBITRATION UNDER THIS ACT. (7) THE COMPETENT AUTHORITY OR THE ARBITRATOR WHILE DETERMINING THE AMOUNT UNDER SUB-SECTION (1) OR SUB-SECTION (5) AS THE CASE MAY BE SHALL TAKE INTO CONSIDERATION (A) THE MARKET VALUE OF THE LAND ON THE DATE OF PUB LICATION OF THE NOTIFICATION UNDER SECTION 3 A; ITA NO. 173/AGRA/2019 5 (B) THE DAMAGE IF ANY SUSTAINED BY THE PERSON INT ERESTED AT THE TIME OF TAKING POSSESSION OF THE LAND BY REASON OF THE SEV ERING OF SUCH LAND FROM OTHER LAND; (C) THE DAMAGE IF ANY SUSTAINED BY THE PERSON INT ERESTED AT THE TIME OF TAKING POSSESSION OF THE LAND BY REASON OF THE ACQU ISITION INJURIOUSLY AFFECTING HIS OTHER IMMOVABLE PROPERTY IN ANY MANNE R OR HIS EARNINGS; (D) IF IN CONSEQUENCES OF THE ACQUISITION OF THE L AND THE PERSON INTERESTED IS COMPELLED TO CHANGE HIS RESIDENCE OR PLACE OF BUSINESS THE REASONABLE EXPENSES IF ANY INCIDENTAL TO SUCH CHA NGE. 6. FROM THE PERUSAL OF AFORESAID PROVISION IT IS C LEAR THAT THE AWARD WAS MADE IN SECTION 3G OF THE NATIONAL HIGHWAYS ACT ON 05.02.20 13 AND COMPENSATION WAS GIVEN AS PER FORM 16A ON 01.01.2014. HENCE WE DO NOT FIN D APPLICABILITY OF RFCTAAR ACT TO THE TRANSACTION UNDER CONSIDERATION BEFORE US. W E ARE OF THE OPINION THAT EVEN SECTION 24 IS NOT APPLICABLE AS IN THE PRESENT CASE AWARD WAS PASSED ON 05.02.2013 WHICH IS A DATE PRIOR TO THE DATE WHEN RFCTAAR ACT WAS MADE APPLICABLE. THEREFORE ITS PROVISIONS ARE NOT APPLICABLE. FURTH ER AS PER SECTION 5 OF THE IT ACT INCOME OF ASSESSEE (COMPENSATION RECEIVED BY ASSESS EE) IS REQUIRED TO BE TAXED WHEN THE SAID COMPENSATION HAVE ACCRUED IN FAVOUR O F THE ASSESSEE OR DEEMED TO HAVE BEEN ACCRUED. UNDISPUTEDLY THE ASSESSEE WAS ENTITLED TO RECEIVE THE COMPENSATION WHEN THE AWARD WAS PASSED QUANTIFYING THE AMOUNT IN FAVOUR OF THE ASSESSEE FOR ACQUISITION OF LAND. THEREFORE IN OUR OPINION THE CUTOFF DATE FOR THE PURPOSE OF DETERMINING ITS TAXABILITY IS THE DATE W HEN THE ASSESSEE WAS FOUND TO BE ENTITLED TO RECEIVE THE COMPENSATION AND NOT THE DA TE WHEN IT WAS ACTUALLY RECEIVED ITA NO. 173/AGRA/2019 6 BY THE ASSESSEE. IN THE LIGHT OF THE ABOVE WE DO NO T FIND ANY MERIT IN APPEAL OF THE ASSESSEE. ACCORDINGLY THE SAME DESERVES TO BE DISM ISSED. 7. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/03/2021 SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS*