Special Land Acquisition Officer, Jagatsinghpur V. ITO(TDS), Cuttack

ITA 417/CTK/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52433 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 07-10-2011
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: R KARARS; G NAIK
• Section: 201(1)

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 417/CTK/2011 (ASSESSMENT YEAR 2010 - 11) SPECIAL LAND ACQUISITION OFFICER, MAJOR INDUSTRIAL PROJECTS, JAGATSINGHPUR PAN: BAGP S 2722 E VERSUS INCOME - TAX OFFICER (TDS), CUTTACK. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI G. NAIK AND R.KAR, ARS FOR THE RESPONDENT S MT. PARAMITA TRIPATHY, DR DATE OF HEARING : 01.12.2011 DATE OF PRONOUNCEMENT : 02.12.2011 ORDER SHRI K.K.GUPTA, AM : THIS APPEAL IS ON THE SOLITARY ISSUE OF THE LEARNED CIT(A) NOT HAVING ADJUDICATED THE ISSUES ON MERITS BUT DISMISSING THE APPEAL IN LIMINE FOR THE ASSESSEE HAVING FILED THE APPEAL BELATEDLY BY 76 DAYS. 2. THE BRIEF FACTS OF T HE CASE ARE THAT THE ASSESSING OFFICER DEMANDED THE TAX DEDUCTION A T SOURCE UNDER THE PROVISIONS OF SECTION 201(1) AND 201(1A) WHEN HE OBSERVED THAT THE ASSESSEE BEING A GO VERNMENT EMPLOYEE DESIGNATED AS SPECIAL LAND ACQUISITION OFFICER HAD FAILED TO DEDUC T TAX AT SOURCE ON THE AMOUNT OF COMPENSATION PAID TO THE OWNERS OF THE AGRICULTURAL LAND AS PER THE ACQUISITION OFFICER. HE ENCLOSED THE LIST OF THE PAYEES WHO HAD BEEN PAID A TOTAL AMOUNT OF LAND COMPENSATION AMOUNTING TO 17,54,09,753 BUT NO TAX WAS DED UCTED UNDER THE PROVISIONS OF SECTION 194LA RAISED THE DEMAND ON THE SAID OFFICER UNDER THE PROVISIONS OF SECTION 201(1) ALONG WITH INTEREST U/S.201(1A) BEING THE ASSESSEE IN DEFAULT. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHO RITY BELATEDLY BY 76 DAYS WHICH CONDONATION PETITION FOR DELAY IN FILING THE APPEAL WAS CO NSIDERED BY THE LEARNED CIT(A) AS NOT MERITORIOUS. HE DISMISSED THE APPEAL IN LIMINE WITHOUT GOING INTO THE MERITS OF THE APPEAL BEFORE HIM. ITA NO.417/CTK/2011 2 3. THE LEARNED COUNSEL FO R THE ASSESSEE INITIATING HIS ARGUMENTS SUBMITTED THAT THE LEARNED CIT (A) HAS MISDIRECTED HIMSELF TO RELY ON CERTAIN JUDICIAL PRONOUNCEMENT FOR NOT ADJUDICATING THE ISSUES ON MERITS AT ALL. PRIMAFACIE IT WAS NOT THE CASE OF NEGLIGENT DELAY ON THE PART OF T HE SPECIAL LAND ACQUISITION OFFICER INSOFAR AS IT WAS SUBMITTED TO THE LEARNED CIT(A) THAT WHEN THE DEMAND ORDER FROM THE ASSESSING OFFICER WAS RECEIVED, THE SPECIAL LAND ACQUISITION OFFICER WAS TRAVELLING FOR ALL THE MAJOR PROJECTS AT JAGATSINGHPUR AND HE WAS ENGAGED FOR THE IMPUGNED THREE MONTHS IN COORDINATING WITH THE SPECIAL TA SK FORCE WHICH HAD STARTED ACQUISITIONING LAND FOR POSCO IN PARADEEP IN JAGATSINGHPUR DISTRICT. IT WAS ALSO SUBMITTED THAT THE SPECIAL LAND ACQUISITION OFFICER WAS REQUIRED TO AVOID LAW AND ORDER SITUATION AT THE POSCO SITE AS WELL AS EXPEDITE THE SURVEY AND LAND ACQUISITION WORK FOR THE PROJECT. THERE WAS NO MOTIVE FOR NOT COMPLYING TO THE PROVISIONS OF THE I.T.ACT TO FILE THE APPEAL ON TIME. THE LEARNED CIT(A) THEREFORE, OUGH T TO HAVE CONDONED THE DELAY AND ADJUDICATE THE ISSUES ON MERITS INSOFAR AS PRIMAFACIE IT WAS BROUGHT TO THE KNOWLEDGE OF THE ASSESSING OFFICER CREATING THE DEMAND THAT THE SAID LAND WAS AGRICULTURAL LAND AND WAS NOT TO BE CONSIDERED FOR TDS AS NOTED BY H IM WHEN HE STARTED DEVOTING HIS DELIBERATION ON CREATING THE DEMAND AFTER ANALYZING WHETHER THE LAND ACQUIRED COULD BE CONSIDERED AS AGRICULTURAL LAN D. SECTION 194LA CLEARLY DEFINES TAX TO BE DEDUCTED AT SOURCE ON LAND OTHER THAN AGRICULTURAL LAND TO BE SU BJECTED TO DEDUCTION. IN SUPPORT OF HIS CLAIM, THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF MYSORE URBAN DEVELOPMENT AUTHORITY & ORS V. INCOME - TAX OFFICER & ANR., [(2008) 218 CTR 678 (KAR)] AND ALSO THE DECISION OF ITAT, SPECIAL BENCH, AHME DABAD IN THE CASE OF SPECIAL LAND ACQUISITION OFFICER V. INCOME - TAX OFFICER [(2010) 42 SOT 9 (AHD)] WHICH DECISIONS ARE BEING MADE AVAILABLE HAD ITA NO.417/CTK/2011 3 CLEARLY HELD THAT THERE I S NO PROVISION U/S.194LA FOR A REFER ENCE TO REVENUE AUTHORITY BY THE LAND ACQUISITION OFFICER FOR OBTAINING THEIR OPINION AS TO THE NATURE OF LAND BEING ACQUIRED BY HIM WHETHER COULD BE AGRICULTURAL. IN VIEW THEREOF, THE LAND ACQUISITION OFFICER IS PRIMAFACIE JUSTIFIED FOR NOT DEDUCTING TAX ON THE COMPENSATION PAID ON ACQUISITION OF LAND AND TREES AND HOUSE STANDING THEREON. THE ISSUE, THEREFORE, STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ABOVE DECISIONS, WHICH MAY KINDLY BE DEALT WITH IN ACCORDANCE WITH THE SUBMISSIONS NOW MADE OR MAY BE RESTORED TO THE LEARNED CIT(A) FOR CONSIDERATION OF THE ISSUES ON MERITS AS APPEALED BEFORE HIM BUT NOT DELIBERATED UPON DUE TO DISMISSAL OF APPEAL IN LIMINE. 4. THE LEARNED DR SUBMITTED THAT THE ASSESSING OFFICER WAS WITHIN HIS JURISDICTION TO CONSIDER WHETHER THE PURPORTED LAND SO ACQUIRED WAS AGRICULTURAL LAND OR NOT TO BE CONSIDERED UNDER THE PROVISIONS OF SECTION 194LA. THE LEARNED CIT(A) , THEREFORE, THOUGHT IT FIT NOT TO CONDONE THE DELAY OF 76 DAYS IN FILING THE APPEAL BEFORE HIM BY THE A SSESSEE IN DEFAULT BY QUOTING JUDICIAL PRONOUNCEMENT WHICH MAY KINDLY BE NOTED. HOWEVER, SHE A LSO SUBMITTED THAT AS THE ISSUE HAD NOT BEEN DEALT WITH BY THE LEARNED CIT(A) ON MERITS, SHE HAD NO OBJECTION IF THE MATTER OR RESTORATION TO BE CONSIDERED AFRESH BY THE LEARNED CIT(A) ON THE BASIS OF RELIANCE ON THE CITED CASE LAW S BY THE LEARNED COUNSEL FOR THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON OUR CAREFUL CONSIDERATION OF THE FACTS, WE ARE OF THE VI EW THAT THE ASSESSEE IN DEFAULT NAMELY THE SPECIAL LAND ACQUISITION OFFICER WAS ON GOVERNMENT DUTY AND WAS PHYSICALLY NOT AVAILABLE FOR THE PERIOD OF THREE MONTHS WHEN THE PURPORTED NOTICE OF DEMAND WAS SERVED ON HIM. THE ASSESSEE FILED APPEAL BELATEDLY BY 76 DAYS WHICH IN OUR CONSIDERED OPINION WAS FIT TO BE CONDONED AND WE CONDONE THE SAME. AS SUBMITTED BY THE RIVAL ITA NO.417/CTK/2011 4 PARTIES, THE ISSUES APPARENTLY IS WITH RESPECT TO THE DEDUCTION OF TAX AT SOURCE ON LAND ACQUIRED UNDER THE GOVERNMENT NOTIFICATION THEREFORE COULD NOT BE SUBJECTED TO SCRUTINY WHETHER WAS AGRICULTURAL OR NOT WHEN IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO IMPRESS UPON THE SPECIAL LAND ACQUISITION OFFICER BEING THE ASSESSEE IN DEFAULT THAT THE LAND AS PER THE GOVERNMENT ORDER WAS AGRICULTU RAL. IT WAS MERE OPINION OF THE ASSESSING OFFICER WHICH IS TO BE VERIFIED BY THE LEARNED CIT(A) ON THE BASIS OF FACTS BROUGHT ON RECORD AS WHOLLY COVERED BY THE SPECIAL BENCH DECISION OF ITAT, AHMEDABAD IN THE CASE OF SPECIAL LAND ACQUISITION OFFICER V. I NCOME - TAX OFFICER [(2010) 42 SOT 9 (AHD)]. IN VIEW THEREFORE, THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR CONSIDERATION ON MERITS AS APPEALED AGAINST BEFORE HIM IN THE LIGHT OF ABOVE JUDICIAL PRONOUNCEMENTS AND PASS NECESSARY CONSEQUENTIAL ORDER AFTER GIVING PROPER OPPORTUNITY TO BOTH THE PARTIES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 02.12.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SPECIAL LAND ACQUISITION OFFICER, MAJOR INDUSTRIAL PROJECTS, JAGATSINGHPUR. 2. THE RESPONDENT: INCOME - TAX OFFICER (TDS), CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.