The Special Land Acquisition Officer, Bareilly V. Income Tax Officer-TDS , Bareilly

ITA 161/LKW/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5158 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 20-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: S N KAPOOR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKN BENCH A : LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA , ACCOUNTANT MEMBER I.T.A. NO S . 161 & 162 /LKW/201 3 ASSESSMENT YEAR S:1009 - 10 & 2010 - 11 THE SPECIAL LAND ACQUISITION OFFICER, VS. INCOME TAX OFFICER - TDS, COLLECTORATE, BAREILLY. BAREILLY. PAN:LKNSO7358B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. N. KAPOOR, C.A. RESPONDENT BY : SHRI Y. P. SRIVASTAVA, D.R. DATE OF HEARING : 19 / 12 /2013 DATE OF PRONOUNCEMENT : 27/12/2013 ORDER PER SUNIL KUMAR YADAV: TH ESE APPEAL S ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER S OF CIT(A) ON COMMON GROUNDS EXCEPT THE DIFFERENCE IN QUANTUM. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS OF APPEAL RAISED IN I.T.A. NO.161/LKW/2013: 1. THAT THE LEARNED C.I.T(A), BAREILLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ASSESSING OFFICER'S (T DS) ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY TO THE APPELLANT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF PRESENT CASE THE LEARNED CIT (A) OUGHT TO HAVE HELD THAT THE PROVISION OF SECTION 194 LA OF THE INCOME TAX ACT 1961 ARE NOT APPLICABLE IN CASE OF THE ACQUISITION OF AGRICULTURAL LAND. 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE PRESENT CASE THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT NO TDS IS REQUIRED IN CASE OF COMPENSATION PAID FOR THE ACQUISITION OF AGRICULTURAL LAND HENCE THER E IS NO SHORT DEDUCTION OF RS.9,98,973/ - . 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE PRESENT CASE THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT WHEN THERE IS NO SHORT DEDUCTION OF TDS AND THE RESULTANT INTEREST ON SHORT DEDUCTION AMOUNTING TO RS.3, 49,640.00 SHOULD NOT BE IMPOSED ON THE APPELLANT. 5. THAT THE ORDER OF CIT (A) /A.O(TDS) IS AGAINST THE FACTS, LAWS AND PRINCIPLES OF NATURAL JUSTICE PARTICULARLY WHEN THE PROPER AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN TO THE APPELLANT TO HAVE HIS SAY FO R THE REASONS RELIED ON BY HIM WHILE FRAMING THE ORDERS IN THE PRESENT CASE. 6. THAT THE APPELLANT RESERVE THE RIGHT TO ADD, ALTER, MODIFY OR DELETE ANY OR ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE ASSESSEE WAS REQUIRED TO ACQUIRE THE LAND IN DISTRICT BAREILLY PURSUANT TO THE GOVT. NOTIFICATION FOR WHICH COMPENSATION WAS PAID. AS PER THE PROVISIONS OF SE CTION 194LA, THE ASSESSEE WAS REQUIRED TO DEDUCT THE TDS WHERE THE COMPENSATION WAS PAID ON ACQUISITION OF NON AGRICULTURAL LAND. ON RECEIPT OF NOTICE FROM THE ASSESSING OFFICER, THE ASSESSEE HAS FURNISHED THE DETAILS OF PERSONS TO WHOM THE COMPENSATION W AS PAID BUT THE ASSESSING OFFICER WITHOUT VERIFYING THE FACT THAT THE AGRICULTURAL LAND WAS ACQUIRED FOR WHICH TDS WAS NOT REQUIRED TO BE DEDUCTED ON THE PAYMENT OF ITS COMPENSATION AND HAS HELD THE ASSESSEE TO BE IN DEFAULT FOR NON DEDUCTION OF TDS AND RAISED THE DEMAND U/S 201(1) AND 201(1A) AT RS.13,48,610/ - IN ASSESSMENT YEAR 2009 - 2010 AND RS.25,67,660/ - IN ASSESSMENT YEAR 1010 - 3 1011. AGAINST THIS AN APPEAL WAS FILED BEFORE THE CIT(A) BUT NONE APPEARED ON BEHALF OF THE ASSESSEE AS NO PROPER NOTICE WAS SERVED. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT UNDER THESE FACTS THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE NATURE OF LAND ACQUIRED BY THE GOVT. FOR WHICH COMPENSATION WAS PAID. 3. LEARNED D.R., ON THE OTHER HAND, HAS PLACED HEAVY RELIANCE UPON THE ORDER OF LEARNED CIT(A) AS WELL AS OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT AS PER PROVISO TO SECTION 194LA, WHEREVER ANY IMMOVABLE PROPERTY IS ACQUIRED UNDER COMPULSORY ACQUISITION AND COMPENSA TION IS PAID BY THE ACQUISITION AUTHORITY, THEY ARE REQUIRED TO DEDUCT THE TDS @10% ON SUCH SUM ON WHICH INCOME TAX IS REQUIRED TO BE COMPUTED. SINCE THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO ESTABLISH THAT THE ACQUISITION WAS MADE WITH REGARD TO NON AGRICULTURAL LAND, THE REVENUE HAS RIGHTLY INVOKED THE PROVISIONS OF SECTION 201 AND 201(1A) AND DETERMINED THE LIABILITY AGAINST THE ASSESSEE. 4. WE HAVE CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS AND W E FIND THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS ONLY FILED THE LIST OF PERSONS TO WHOM THE COMPENSATION WAS PAID ON ACCOUNT OF COMPULSORY ACQUISITION OF LAND. THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE WITH REGARD TO NATURE OF LAND COMPULSORILY ACQUIRED BY THE GOVT. THEREFORE, IN THE ABSENCE OF DETAILS OF NATURE OF LAND ACQUIRED, IT CANNOT BE DECIDED WHETHER THE ASSESSEE WAS LIABLE TO DEDUCT THE TDS ON THE PAYMENTS OF COMPENSATION MADE ON ACCOUNT OF COMPULSORY ACQUISITION OF THE IMMOVABLE PROPE RTY. BEFORE THE CIT(A), NONE APPEARED THEREFORE, HE HAS NO OCCASION TO ADJUDICATE THE ISSUE IN THE LIGHT OF NATURE OF LAND COMPULSORILY ACQUIRED BY THE GOVT. IN THE LIGHT OF THESE FACTS, WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE 4 REQUIRED A FRESH ADJU DICATION BY THE ASSESSING OFFICER IN THE LIGHT OF NATURE OF LAND COMPULSORILY ACQUIRED BY THE GOVT. FOR WHICH THE IMPUGNED COMPENSATION WAS PAID TO DIFFERENT PERSONS. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO READJUDICATE THE ISSUE IN THE LIGHT OF NATURE OF LAND COMPULSORILY ACQUIRED BY THE GOVT. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL RELEVANT EVIDENCE WITH REGARD TO THE NATURE OF LAND COMPULSORILY ACQUIRED BY THE GOVT. FOR WHICH IMPUGNED COMPENSATION WAS PAID. AS PER SECTION 194LA, IF IMMOVABLE PROPERTY OTHER THAN THE AGRICULTURAL LAND IS ACQUIRED, THE REVENUE IS REQUIRED TO DEDUCT TDS ON THE COMPENSATION PAID FOR IT. IN TERMS INDICATED ABOVE, THE AFORESAID ISSUE MAY BE REEXAMINED BY THE ASSESSING OFFICER AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/2013 ) SD/. SD/. (A. K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/12/2013 *CL SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSIS T ANT REGISTRAR