Jangpal Singh, Gurgaon V. ITO, Ward- 2(2), Gurgaon

ITA 5423/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4903 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MITHUN SETHY
• Assessee Lawyers: SUDHIR YADAV
• Keywords: Capital asset; Condonation of delay; TDS; Set aside
• Section: 45(5); 263; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER, AND SHRI AMIT SHUKLA, JUDICIAL MEMBER, ITA NO. 5367/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHRI AMAR CHAND GUPTA, C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-1(1), GURGAON, PAN - AGOPG4243M APPELLANT RESPONDENT ITA NO. 1424/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHRI DAYA RAM, S/O- CHANDAN LAL, H. NO.41/1, HARMONY HOMES, SUSHANT LOK 3, SECTOR 57, GURGAON 122001 ITO, WARD-1(4), GURGAON, PAN - BQOPR0381Q APPELLANT RESPONDENT ITA NO. 1425/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI PURAN SINGH, C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 DCI T, CIRCLE-3, GURGAON PAN - CWYPS7360D APPELLANT RESPONDENT ITA NO. 213/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHRI KARAN SINGH DAGAR, C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-2(3), GURGAON, PAN - BRGPD0122G APPELLANT RESPONDENT 2 ITA NO. 214/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHRI ASHOK KUMAR C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-1(5), GURGAON, PAN - DAIPK8225G APPELLANT RES PONDENT ITA NO. 2414/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI RAJ KUMAR C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-3(3), GURGAON, PAN - AYDPD9832G APPELLANT RESPONDENT ITA NO. 2415/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI SATBIR SINGH, S/O-SAJAN SINGH, H. NO.328/3, VILL. & PO- MANESAR, NEAR ANIMAL HOSPITAL, GURGAON,HARYANA ITO, WARD-4(1), GURGAON, PAN - CMFPS2957B APPELLANT RESPONDENT ITA NO. 2888/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHR I MANJE RAM C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-2(4), GURGAON, PAN - AVPPR6716E APPELLANT RESPONDENT 3 ITA NO. 3564/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI RANBIR SINGH, S/O- SAJJAN SINGH, H. NO.328/3, VILL. & PO-MANESAR, NEAR ANIMAL HOSPITAL, GURGAON-122052 ITO, WARD-3(4), GURGAON, PAN - BOPPS0711E APPELLANT RESPONDENT ITA NO. 1707/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI SATISH KUMAR GUPTA C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-4(1), GURGAON, PAN - ABAPG9093N APPELLANT RESPONDENT ITA NO. 5423/DEL/2017 [ASSESSMENT YEAR: 2014-15] SHRI JANGPAL SINGH, S/O- SHRI CHATTER SINGH, VILLAGE HARSURU, P.O. GHARI HARSURU, GURGAON, HARYANA ITO, WARD-2(2), ROOM NO.501, 5 TH FLOOR, HSIIDC BUILDING, SHANKAR CHOWK UDYOG VIHAR, PHASE V, GURGAON, PAN - CGXPS3519P APPELLANT RESPONDENT ITA NO. 5368/DEL/2018 [ASSESSMENT YEAR: 2013-14] SHRI AMAR CHAND GUPTA C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ACIT, CIRCLE-1(1), GURGAON PAN - AGOPG4243M APPELLANT RESPONDENT 4 ITA NO. 212/DEL/2018 [ASSESSMENT YEAR: 2014-15] SHRI CHANDRAOOP DAGAR C/O-YSR & ASSOCIATES, PLOT NO.214, BASEMENT, NEAR VIGILANCE OFFICE, SECTOR-47, GURGAON-122001 ITO, WARD-1(3), GURGAON, PAN - BRGPD0123H APPELLANT RESPONDENT APPELLANT BY SHRI SUDHIR YADAV RESPONDENT BY SHRI MITHUN SETHY DATE OF HEARING 14 /08 /2019 DATE OF PRONOUNCEMENT 14 /08 /2019 ORDER PER BENCH, THIS BUNCH OF THIRTEEN APPEALS HAS BEEN FILED BY DI FFERENT ASSESSEES AGAINST THE SEPARATE ORDERS OF LD. CIT(A) . 2. THE LD. AR, AT THE OUTSET, SUBMITTED THAT ALL TH ESE APPEALS INVOLVE IDENTICAL ISSUE OF TAXABILITY OF RECEIPT OF INTERES T ON ENHANCED COMPENSATION, WHICH WAS RECEIVED BY ASSESSEES ON AC COUNT OF ACQUISITION OF THEIR LANDS. THE LD. AR SUBMITTED TH AT THE HONBLE SUPREME COURT IN THE CASE OF GHANSHYAM (HUF) HAS ALREADY SE TTLED THIS ISSUE, AND HAS ALREADY HELD THAT INTEREST RECEIVED BY ASSE SSEES U/S 28 OF LAND ACQUISITION ACT, IS A PART OF COMPENSATION AND IS N OT LIABLE TO TAX. THE LD. AR FURTHER INVITED OUR ATTENTION TO THE FACT THERE IS A DELAY IN FILING THE APPEALS BY 70 DAYS AND 170 DAYS RESPECTIVELY IN ITA NO.1424/DEL/2018 5 AND IN ITA NO.1425/DEL/2018. IT WAS SUBMITTED THAT THE REASON FOR DELAY IN FILING APPEALS AS STATED IN THEIR APPLICATION FO R CONDONATION OF DELAY IS THE FACT THAT THE ASSESSEES WERE AGRICULTURISTS AND DUE TO IGNORANCE, THE ASSESSEE WERE UNABLE TO TAKE ADVICE OF COUNSELS AND IT WAS ONLY AFTER THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF SHRI HARI SINGH & ORS. THAT ASSESSEES DECIDED TO FILE APPEALS AGAIN ST THE ORDER OF THE LD. CIT(A). THE LD. AR SUBMITTED THAT IN VIEW OF SUBSTA NTIAL JUSTICE AND IN VIEW OF THE FACT THAT THE ASSESSEES WERE IGNORANT A ND UNEDUCATED PERSONS, THE DELAY MAY BE CONDONED. 3. THE LD. DR HAD NO OBJECTION TO APPLICATION FOR C ONDONATION OF DELAY. THEREFORE, THE DELAY WAS CONDONED AND LD. AR WAS DIRECTED TO PROCEED WITH HIS ARGUMENTS. 4. THE LD. AR SUBMITTED THAT THESE APPEALS ARE COVE RED IN FAVOUR OF ASSESSEE BY THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF CIT, FARIDABAD VS GHANSHYAM (HUF) [2009 (8) SCC 412]. IT WAS FURTHER SUBMITTED THAT HONBLE SUPREME COURT AGAIN IN THE C ASE OF UOI VS HARI SINGH & ORS. HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. THE LD. DR ON THE OTHER HAND, HEAVILY PLACED REL IANCE ON THE ORDER OF THE AUTHORITIES BELOW AND ARGUED THAT THE LD. CI T(A) HAS CONSIDERED A NUMBER OF CASE LAWS AND HAS DISTINGUISHED THE CASE LAW OF 6 GHANSHYAM(HUF) AND THEREFORE IT WAS PRAYED THAT TH E APPEALS FILED BY ASSESSEE BE DISMISSED. 6. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN ALL THES E APPEALS, IT IS AN ADMITTED FACT THAT THE ASSESSEES HAD RECEIVED INTER EST U/S 28 OF LAND ACQUISITION ACT ON ENHANCED COMPENSATION. THE HONB LE SUPREME COURT IN THE CASE OF CIT VS GHANSHAM (HUF) 182 TAXMAN.COM 368 HAS CLEARLY HELD THAT INTEREST RECEIVED BY THE ASSESSEE IN VIEW OF SECTION 28 OF LAND ACQUISITION ACT 1894 IS PART OF THE COMPENSATION AN D THEREFORE WAS NOT TAXABLE. THE HONBLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI OPINDER SINGH VIRK, VIDE ORDER DATED 14/03/2019 HAS DEALT WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CHET RAM (HUF) AS WELL AS THE CASE LAWS OF GHANSHYAMDAS AND AFTER ANALYSING THE SAME HAS AGAIN HELD THAT INTEREST RECEIPT ON ENHANCED CO MPENSATION U/S 28 OF THE LAND ACQUISITION ACT IS IN THE NATURE OF COMPEN SATION. WE FURTHER FIND THAT HONBLE DELHI TRIBUNAL VIDE ORDER DATED 09/08/ 2019 IN THE CASE OF SHRI MANISH YADAV IN ITA NO.3836/DEL/2016 HAS TAKEN COGNISANCE OF THE ORDER OF THE HONBLE DELHI TRIBUNAL IN THE CASE OF SHRI OPINDER SING VIRK AND HAS DISMISSED THE APPEAL OF THE REVENUE BY HOLDING AS UNDER:- 4. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT ASSESSEE HAS RECEIVED INTEREST U/S 28 OF LAND ACQUISITION AC T, 1894. THE HONBLE APEX COURT IN THE CASE OF CIT VS GHANSHYAM( HUF) 182 7 TAXMAN 368 HAS CLEARLY HELD THAT INTEREST RECEIVED BY THE ASSESSEE IN VIEW OF SECTION 28 OF LAND ACQUISITION ACT 1894 IS PART OF THE COMPENSATION AND THEREFORE WAS NOT TAXABLE. THE H ONBLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI OPINDER S INGH VIRK, VIDE ORDER DATED 14/03/2019 HAS DEALT WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHET RAM (HUF) AS WELL AS THE CASE LAWS OF GHANSHYAMDAS AND AFTER ANALYSING THE SAME HAS AGAIN HELD THAT INTEREST RECEIPT ON ENHANCED COMPENSATION U/S 28 OF THE LAND ACQUISITION ACT IS IN THE NATURE OF COMPENSATION. T HE FINDING OF THE HONBLE TRIBUNAL AS REPRODUCED BELOW:- 8. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORIT IES BELOW IN THE LIGHT OF THE ARGUMENTS ON EITHER SIDE AND THE DECIS IONS OF THE HONBLE APEX COURT CITED ABOVE. IN THE CASE OF GHANSHYAM (S UPRA), THE HONBLE SUPREME COURT HELD IN UNEQUIVOCAL TERMS THA T THE ADDITIONAL AMOUNT U/S 23(1A), SOLATIUM UNDER SECTION 23(2) AND INTEREST ON EXCESS COMPENSATION U/S 28 OF THE LAND ACQUISITION ACT FORM PART OF ENHANCED COMPENSATION U/S 45(5)(B) AND, THEREFORE, IS SUBJECT TO TAX U/S 45(5) IN THE YEAR OF RECEIPT. NO CONTRARY VIEW IS TAKEN BY THE SUPREME COURT IN THE SUBSEQUENT JUDGMENTS AND AS ON THE DATE, LAW IS FAIRLY SETTLED THAT THE AMOUNT OF INTEREST RECEIVED U/S 28 OF THE LAND ACQUISITION ACT IS IN THE NATURE OF CAPITAL GAIN. I N THE CASE OF HARI SINGH (SUPRA) WHILE DEALING WITH THE SIMILAR QUESTION UND ER IDENTICAL SET OF FACTS WHILE SETTING ASIDE THE MATTER TO THE FILE OF THE AO TO EXAMINE THE FACTS OF THE CASE AND TO APPLY THE LAW AS CONTAINED IN THE INCOME-TAX ACT, HONBLE SUPREME COURT SPECIFICALLY DIRECTS THA T IN CASE THE LEARNED AO FINDS THAT THE COMPENSATION WAS RECEIVED IN RESP ECT OF THE AGRICULTURAL LAND, THE TAX DEPOSITED WITH THE INCOM E-TAX DEPARTMENT SHALL BE REFUNDED TO THE ASSESSEE. HONBLESUPREME C OURT GAVE THE ABOVE DIRECTION AFTER NOTICING THE DECISION IN THE CASE OF GHANSHYAM (SUPRA). 9. IN THIS SET OF CIRCUMSTANCES, IT DOES NOT ADMIT OF ANY DOUBT AS TO THE NATURE OF RECEIPT BY WAY OF INTEREST U/S 28 OF THE LAND ACQUISITION ACT IN THE HANDS OF THE ASSESSEE OR THE APPLICABILITY OF T HE INCOME-TAX ACT TO SCH AMOUNT. WHEN THE HONBLE SUPREME COURT SPECIFIC ALLY DIRECTS IN THE CASE OF HARI SINGH (SUPRA), THE LEARNED AO SHAL L EXAMINE THE FACTS OF THE CASE AND THEN APPLY THE LAW AS CONTAINED, CI T(A) HAS NOT STATED THAT SUCH AN AMOUNT SHALL BE BROUGHT TO TAX U/S 45( 5) WITHOUT APPLYING THE PROVISIONS UNDER 10(37) OF THE ACT, WHICH EXEMP TS SUCH RECEIPTS FROM BEING TAXED. IT COULD BE NOTED THAT SECTION 45 (5) MAKES NO REFERENCE TO THE NATURE OF PROPERTY THAT IS ACQUIRE D BUT IT DEALS WITH THE CATEGORY OF CASES WHICH FALLS IN THE DESCRIPTION OF CAPITAL ASSETS. HOWEVER, SECTION 10(37) EXEMPTS SPECIFICALLY AN INC OME CHARGEABLE UNDER THE HEAD CAPITAL GAINS ARISING FROM THE TRA NSFER OF AGRICULTURAL LAND. IT IS, THEREFORE, CLEAR THAT ONCE THE HONBLE SUPREME COURT DIRECTED THE AO IN THE CASE OF HARI SINGH (SUPRA) T HAT AFTER EXAMINING THE FACTS TO APPLY THE PROVISIONS CONTAINED IN THE INCOME-TAX ACT WITH A SPECIFIC REFERENCE TO THE AGRICULTURAL LAND STATING THAT IN CASE IF IT IS FOUND THAT THE COMPENSATION WAS RECEIVED IN RESPECT OF THE AGRICULTURAL LAND, THE TAX DEPOSITED WITH THE INCOME-TAX DEPARTM ENT SHALL BE REFUNDED TO THESE DEPOSITORS. 8 10. IN THIS MATTER, WHAT WAS ACQUIRED BY THE GOVERN MENT WAS AN AGRICULTURAL LAND AND SUCH A FACT IS WELL EVIDENT F ROM THE ASSESSMENT ORDER ITSELF . AS A MATTER OF FACT, LEARNED AO, BY GRANTING EXEMPTION UNDER SECTION 10(37) OF THE ACT, REFUNDED A SUM OF RS. 1,22,01,723/-. ONLY QUESTION IS WHETHER THE INTEREST RECEIVED UNDE R SECTION 28 OF THE ACT ASSUMES THE CHARACTER OF ENHANCED COMPENSATION AND CONSEQUENTLY IT IS EXEMPT UNDER SECTION 10(37) OF T HE ACT. IN VIEW OF THE DECISIONS OF THE HONBLE SUPREME COURT REFERRED TO ABOVE, WE DO NOT HAVE ANY DOUBT IN OUR MIND AS TO THE LAW IN THI S ASPECT AND WHILE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE H ONBLE SUPREME COURT IN THE CASE OF GHANSHYAM (SUPRA) AND HARI SINGH (SU PRA) ABOVE, DIRECT THE LD. AO TO REFUND THE TDS AMOUNT THAT WAS DEDUCT ED ON ACCOUNT OF THE INTEREST RECEIVED UNDER SECTION 28 OF THE LAND ACQUISITION ACT ALSO. WITH THESE DIRECTIONS, WE ALLOW THE APPEAL OF THE A SSESSEE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 5. FURTHER, WE FIND THAT THE HONBLE CHANDIGARH BEN CH OF THE TRIBUNAL VIDE ORDER DATED 11/01/2019 HAS DEALT WITH THE CASE LAW OF MANJIT SINGH AND RELYING ON THE ORDER OF THE HONBL E SUPREME COURT IN THE CASE OF HARI SINGH HAS ALLOWED RELIEF TO THE AS SESSEE BY CANCELLING ORDER U/S 263 BY HOLDING AS UNDER:- 6. DURING THE COURSE OF HEARING BEFORE US, ID. COUNSEL FOR THE ASSESSEE POINTED OUT THAT SUBSEQUENT TO THE DECISIO N PASSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NA RESH JAIN (SUPRA),WHICH WAS HEAVILY RELIED UPON BY THE ID. PR . CIT IN HIS ORDER FOR STATING THAT THE PROPOSITION LAID DOWN BY THE APEX COURT IN THE CASE OF GHANSHYAM, HUF STOOD OVERRULED, AND THAT INTEREST U /S 28 WAS LIABLE TO TAX AS 'INCOME FROM OTHER SOURCES', THE HON'BLE APEX COURT HAD CATEGORICALLY REITERATED ITS DECISION RENDERED IN T HE CASE OF GHANSHYAM, HUF IN THE CASE OF UNION OF INDIA ORS. V S HARI SINGH & ORS. IN CA NO. 15041/2017 DATED 15.09.2017. IT WAS POINTED OUT THAT THE DECISION OF THE JURISDICTIONAL HIGH COURT IN TH E CASE OF NARESH JAIN WAS DATED 12.07.2017, WHILE THE APEX COURT HAD REIT ERATED THE DECISION RENDERED IN THE CASE OF GHANSHYAM, HUF SUB SEQUENTLY IN SEPTEMBER,2017 AND THEREFORE, THE PROPOSITION LAID DOWN BY THE APEX COURT WAS THE LAW OF THE LAND FOLLOWING WHICH INTER EST U/S 28 OF THE LAA, 1894,WAS IN THE NATURE OF ENHANCED COMPENSATIO N AND NOT IN THE NATURE OF INTEREST AND THEREFORE, HAD BEEN RIGHTLY NOT RETURNED TO TAX BY ASSESSEES. IT WAS POINTED OUT THAT IN VIEW OF THE S AME, THERE WAS NO ERROR IN THE ORDER OF THE AO AND THE JURISDICTION A SSUMED BY ID. PR. CIT, THEREFORE, WAS ERRONEOUS. 7. THE ID. DR ON THE OTHER HAND, RELIED ON THE ORDER OF THE ID. PR. CIT. 8. HAVING HEARD THE RIVAL CONTENTIONS. WE FIND MERIT I N THE CONTENTION OF THE ID. COUNSEL FOR THE ASSESSEE. UND OUBTEDLY THE LD. PR. CIT HAD HEAVILY RELIED ON THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF MANJIT SINGH (SUPRA) AND MORE SPECIFICA LLY IN THE CASE OF NARESH JAIN (SUPRA) TO HOLD THAT THE PROPOSITION LA ID DOWN BY THE APEX COURT IN THE CASE OF GHANSHYAM, HUF THAT INTEREST R ECEIVED U/S 28 OF THE LAND ACQUISITION ACT, 1894 WAS PART OF THE ENHA NCED COMPENSATION, WAS NOT GOOD LAW. AS RIGHTLY POINTED OUT BY THE ID. 9 COUNSEL FOR THE ASSESSEE THE HON'BLE APEX COURT HAS REITERATED THE AFORESAID PROPOSITION IN THE CASE OF HARI SINGH (SU PRA) SUBSEQUENT TO THE DECISION PASSED BY THE HON'BLE HIGH COURT IN TH E CASE OF NARESH JAIN (SUPRA) .WE HAVE GONE THROUGH THE ORDER OF THE APEX COURT IN THE CASE OF HARI SINGH AND FIND THAT THE UNION OF INDIA HAD COME BEFORE THE SUPREME COURT AGAINST THE DECISION OF THE HIGH COURT IN WRIT PETITION FILED BY THE ASSESEEES BEFORE THE HIGH COU RT. THE ISSUE BEFORE THE HIGH COURT WAS THAT THE ASSESSEES HAD RECEIVED ENHANCED COMPENSATION ON WHICH TAX HAD BEEN DEDUCTED AT SOUR CE AS PER THE PROVISION OF SECTION 194LA OF THE ACT. THE ASSESSEE HAD CONTENDED THAT NO TAX WAS DEDUCTIBLE ON THE SAME AS LAND WAS AGRICULTURAL LAND AND WITHOUT EXAMINING THESE FACTS, TAXES HAD BEEN D EDUCTED AT SOURCE. THE HON'BLE HIGH COURT HAD DIRECTED REFUND OF THE TAXES TO THE ASSESSEES AND HAD DIRECTED THE LAND ACQUISITION OFF ICER/COLLECTOR TO EXAMINE WHETHER THEIR LANDS WERE AGRICULTURAL OR NO T AND DECIDE WHETHER TAXES WERE LIABLE TO BE DEDUCTED THEREFROM AS PER THE PROVISIONS OF THE ACT. THE UNION OF INDIA HAD COME IN APPEAL BEFORE THE HON'BLE SUPREME COURT AGAINST THIS ORDER OF THE HIGH COURT STATING THAT IT WAS THE ASSESSING OFFICER WHO WAS CAPABLE O F DETERMINING THE NATURE OF LAND AS BEING AGRICULTURAL OR NOT FOR THE PURPOSES OF TAXABILITY UNDER THE INCOME TAX ACT, 1961. THE SAME WAS AGREED TO BY THE HON'BLE APEX COURT AND THEY HAD, THEREFORE, DIRECTE D THE AO TO EXAMINE THIS ASPECT AND FURTHER CATEGORICALLY STATE D THAT THE PROPOSITION LAID DOWN BY IT IN GHANSHYAM, HUF(SUPRA ) VIS A VIS INTEREST RECEIVED U/S 28 OF THE LAA, 1894 BE KEPT IN MIND TO ASCERTAIN WHETHER THE INTEREST RECEIVED AMOUNTS TO COMPENSATION OR NO T. THE RELEVANT FINDINGS OF THE HON'BLE SUPREME COURT IN THIS REGAR D ARE AS UNDER : WE FIND FORCE IN THE SUBMISSION OF THE LEARNED ADDI TIONAL SOLICITOR GENERAL INSOFAR AS THE CHALLENGE TO THE DIRECTION G IVEN TO THE LAND ACQUISITION COLLECTOR TO DETERMINE AS TO WHETHER TH E LAND IN QUESTION IS AGRICULTURAL LAND OR NOT SINCE THE LAND ACQUISIT ION COLLECTOR HAD. ALREADY DEDUCTED TAX AT SOURCE AND DEPOSITED WITH T HE INCOME TAX DEPARTMENT, IN SUCH CIRCUMSTANCES, BETTER COURSE OF ACTION, WHICH IS IN CONSONANCE WITH THE PROVISIONS OF INCOME TAX ACT , IS FOR THE RESPONDENTS TO APPROACH THE CONCERNED ASSESSING OFF ICER(S) AND TO RAISE THE ISSUE THAT NO TAX IS PAYABLE ON THE COMPE NSATION/ENHANCED COMPENSATION WHICH IS RECEIVED BY THEM AS THEIR LAN D WAS AGRICULTURAL LAND. ONCE SUCH AN ISSUE IS RAISED BEFORE THE ASSES SING OJFICER(S), IT IS FOR THE ASSESSING OFFICER(S) TO EXAMINE THE FACT S OF EACH CASE AND THEN APPLY THE LAW AS CONTAINED IN THE INCOME TAX A CT TO DETERMINE THE AFORESAID QUESTION. INSOFAR AS THESE CASES ARE CONCERNED, WE ALLOW THESE APPEALS BY SETTING ASIDE THE DIRECTIONS CONTAINED IN PARAGRAPH 7 AND SUBSTITUTE THE SAME WITH THE FOLLOW ING DIRECTIONS: (I) THE RESPONDENTS SHALL FILE APPROPRIATE RETURNS BEFO RE THE ASSESSING OFFICER(S) IN RESPECT OF ASSESSMENT YEARS IN QUESTI ON WITHIN A PERIOD OF TWO MONTHS FROM TODAY IN CASE THEY FEEL THAT THE COMPENSATION IN RESPECT OF LAND BELONGING TO THEM WHICH HAD BEEN AC QUIRED WAS AGRICULTURAL LAND, AND CLAIM REFUND OF THE TAX WHIC H WAS DEDUCTED AT SOURCE AND DEPOSITED WITH THE INCOME TAX DEPARTMENT . ON THE FILING OF THESE RETURNS, THE ASSESSING OFFICER(S) SHALL GO INTO THE AFORESAID QUESTION AND WHEREVER IT IS FOUND THAT THE COMPENSA TION WAS RECEIVED IN RESPECT OF AGRICULTURAL LAND, THE TAX DEPOSITED WITH THE INCOME TAX DEPARTMENT SHALL BE REFUNDED TO THESE RESPONDENTS. (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 L AW LAID DOWN BY THIS 10 COURT IN 'COMMISSIONER OF INCOME TAX. FARIDABAD V. GHANSHYAM (HUF)' [2009 (8) SCC 412] IN ORDER TO ASCERTAIN WHE THER THE INTEREST GIVEN UNDER THE SAID PROVISION AMOUNTS TO COMPENSAT ION OR NOT. (3) THE DIRECTION TO REFUND THE AMOUNT OF TAX DEDUCTED AT SOURCE (TDS) TO THE LAND ACQUISITION COLLECTOR IS, ACCORDINGLY, SET ASIDE. HOWEVER, IN THOSE CASES WHERE THE AMOUNT HAS ALREADY BEEN RE FUNDED, NO INTERFERENCE IS CALLED FOR AND IT WILL BE FOR THE I NCOME TAX DEPARTMENT TO PROCEED IN ACCORDANCE WITH THE PROVISIONS OF INC OME TAX ACT. (4) WHERE SUCH NOTICES HAVE NOT ALREADY BEEN ISSUED OR ASSESSMENTS HAVE NOT ALREADY BEEN MADE, IF SUCH'AN ACTION IS TA KEN WITHIN A PERIOD OF TWO MONTHS FROM TODAY, ISSUE OF LIMITATION WOULD NOT COME IN THE WAY OF THE INCOME TAX DEPARTMENT. THIS ORDER IS PAS SED HAVING REGARD TO THE FACT THAT THE PRESENT PROCEEDINGS WER E PENDING IN THIS COURT BECAUSE OF WHICH IT WAS NOT POSSIBLE FOR THE INCOME TAX DEPARTMENT TO ISSUE THESE NOTICES EARLIER. 9. IN VIEW OF THE CATEGORICAL AFFIRMATION OF THE PROPO SITION LAID DOWN BY THE APEX COURT IN THE CASE OF GHANSHYAM HUF (SUPRA) ,IN ITS LATEST DECISION IN THE CASE OF HARI SINGH (SUPRA), WE HOLD THAT THERE IS NO ERROR IN THE ORDER OF THE AO TREATING THE INTERE ST RECEIVED BY THEM U/S 28 OF THE LAA,1894,AS COMPENSATION FOLLOWING TH E PROPOSITION LAID DOWN BY THE APEX COURT IN GHANSHYAM HUF(SUPRA).THE ORDER PASSED BY THE LD.PR.CIT U/S 263 IS THEREFORE SET ASIDE. 10. THE APPEAL OF THE ASSESSEE THEREFORE STANDS ALLOWED . 6. THE ARGUMENT OF THE LD. DR THAT THE CASE LAW OF CHET RAM (HUF) DECIDED BY THE HONBLE APEX COURT WILL BE APP LICABLE DO NOT HOLD ANY FORCE IN VIEW OF THE FACT THAT ORDER IN TH E CASE OF CHET RAM (HUF) HAS BEEN PASSED BY HONBLE APEX COURT ON 12/0 9/2017, WHEREAS, THE ORDER IN THE CASE OF HARI SINGH HAS BE EN PASSED BY HONBLE APEX COURT ON 15/09/2017 AND WHEREIN THE HO NBLE APEX COURT HAS DIRECTED THE ASSESSING OFFICER TO KEEP IN MIND THE PROPOSITION LAID DOWN BY IT IN THE CASE OF GHANSHYA M DASS (HUF). 7. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMI TY IN THE ORDER OF THE LD. CIT(A) AND THEREFORE, THE APPEAL FILED BY T HE REVENUE IS DISMISSED. 7. IN VIEW OF THE ABOVE JUDICIAL PRECEDENTS, THE AP PEALS OF THE ASSESSEE ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14/08/ 2019. SD/- SD/- [AMIT SHUKLA] [T.S. KAPOOR] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 14/08/2019. 11 F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI