Income-tax Officer , Latur V. Arun Wamanrao Honerao, Latur

MA 40/PUN/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5303 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 24-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 56; 28; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण “बी” ᭠यायपीठ पुणे मᱶ । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE (Through Virtual Court) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM M.A. No.40/PUN/2021 (Arising out of ITA No.2581/PUN/2016) िनधाᭅरण वषᭅ / Assessment Year : 2013-14 ITO, Ward-3, Latur. .......अपीलाथᱮ / Appellant बनाम / V/s. Shri Arun Wamanrao Honerao, Pochamma Galli, Latur, Dist.- Latur- 413512. PAN : AAEPH1479A ......ᮧ᭜यथᱮ / Respondent Revenue by : Shri M. G. Jasnani Assessee by : Shri Sharad Shah सुनवाई कᳱ तारीख / Date of Hearing : 21.01.2022 घोषणा कᳱ तारीख / Date of Pronouncement : 24.01.2022 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM: This Miscellaneous Application has been filed by the Revenue arising out of ITA No.2581/PUN/2016 for assessment year 2013-14 u/s. 254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) with a prayer to rectify the order of Tribunal dated 11.09.2019. 2. The Revenue has filed the Miscellaneous Application dated 23.03.2020. The relevant contents of the said Miscellaneous Application read as under : “1) While deciding the issue the Hon'ble ITAT has relied upon the decisions of Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Ghanshyam(HUF) (supra) and in other cases wherein it 2 MA No.40/PUN/2021 was held that the interest awarded u/s 28 of the L.A. Act is in the nature of solatium and is integral part of compensation. The said interest is in the nature of capital receipt and hence not eligible to tax under the provisions of Income Tax Act. Whereas, interest received u/s 34 of the L.A. Act is on account delayed payment of compensation and is a revenue receipt. 2) Both the decisions of the Hon'ble Supreme Court relied upon by the Hon'ble ITAT, Pune are prior to 01.04.2010, whereas the impugned case pertains to A.Y. 2013-14. As per amendment to section 56 of the Income-tax Act, 1961, sub-section (viii) to sub-section (2) of section 56 has been inserted by the Finance (No.2) Act, 2009 which is applicable w.e.f. 01.04.2010. As per this amendment the income by way of interest received on compensation or on enhanced compensation referred to in clause (b) of the section 145A is chargeable to tax as income from other sources. 3) The sub-section (b) of section 145A of the Income-tax Act, 1961 clearly mention that interest received by an assessee on compensation or on enhanced compensation as the case may be, shall be deemed to be the income of the year in which it is received. This section does not make any distinction between interest received u/s 28 and u/s 34 of the Land Acquisition Act, 1894. 4) It is pertinent to mention here that the decision of the Hon'ble ITAT, Pune in the case of Shri.Vitthal Gurunath Patil, Latur in ITA No.1386/PUN/2017 for A.Y.2010-11 remitting the issue to the file of the assessing officer with direction to decide the issue de-novo in line with directions given in the case of Dnyanoba Shajirao Jadhav Vs ITO, in ITA No.168/PUN/2016 and also the fact this case falls under the exception mentioned at para 10(c) specified by the Board as per amendment to Circular No.3/2018 dated 11.07.2018 vide letter dated 20.08.2018, as the Revenue Audit objection in the case has been accepted by the Department, the appeal to the Hon'ble High Court has been filed on the following substantial question of law- “(i) Whether on the fact and in the circumstances of the case and in law, the Hon’ble ITAT is right in remitting the issue to the file of the AO to examine as to whether the interest received by the assessee is part of compensation received on acquisition of land u/s 23(1A) and 23(2) r.w.s 28 of the L.A Act or u/s 34 of the L.A. Act 1984 ignoring the amendment made to section 56 and 145A(b) w.e.f. 01.04.2010 vide which the statue is clear that any interest on compensation or enhanced compensation received by the assessee is taxable in the year of receipt.” (ii) Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT is right in remitting the issue to the file of the AO relying on the decision of Dyanoba Shajirao Jadhav which was based on the decision of the Hon’ble S.C. in the case of CIT Vs. Ghanyshyam (HUF) reported in 315 ITR 1 and Bikram Singh & Ors. Land Acquisition Collector & Ors reported in 224 ITR 551 ignoring the fact that the Hon’ble Apex Court’s decision in both the case were prior to the amendments to Section 56 and 145(b) of the IT Act, 1961.” 3 MA No.40/PUN/2021 4) Further, the Hon’ble High Court of Punjab and Haryana in its recent decision in the case of Manjet Singh(HUF) Vs Union of India and the Hon’ble Apex Court in its recent decision in the case of Chet Ram (HUF) has given the findings that the interest received on compensation/enhanced compensation is chargeable to tax. 5) Since the Hon’ble ITAT, has not adjudicate the ground of appeal related enhanced compensation and income from other sources, hence the miscellaneous application u/s. 254(2) of the Income Tax Act, 1961 is required to be filed requesting to re-institute the appeal in the above case.” 3. On the other hand, the Ld. Counsel for the assessee submitted that the order of the Tribunal dated 11.09.2019 is well reasoned and the same does not call for any review or rectification. The Ld. Counsel for the assessee further submitted that there is no ‘mistake apparent from record’ in the order of the Tribunal dated 11.09.2019. 4. The Ld. Counsel for the assessee further submitted that the Revenue has failed to point out any apparent mistake in the order warranting rectification. The Revenue is seeking review of the entire order in the grab of rectification which is basically beyond the scope of Section 254(2) of the Act. The Ld. AR prayed for dismissing the Miscellaneous Application filed by the Revenue. 5. We have perused the case records and heard the rival contentions. We have also analyzed the facts and circumstances in this case. Reverting to our order dated 11.09.2019, we are of considered view that in the guise of rectification, the Revenue is seeking review of the order of Tribunal, which is beyond the scope of powers as envisaged u/s. 254(2) of the Act. Accordingly, Miscellaneous Application filed by Revenue is dismissed being devoid of any merit. 4 MA No.40/PUN/2021 6. In the result, Miscellaneous Application filed by Revenue is dismissed. Order pronounced on this 24 th day of January, 2022. Sd/- Sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) लेखा सद᭭य/ACCOUNTANT MEMBER ᭠याियक सद᭭य/JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 24 th January, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-2, Aurangabad. 4. The Pr. CIT-2, Aurangabad. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.