Late Veluben Jalejar Contractor L/h. Barjor Jalejar Contractor, Ahmedabad V. The CIT- appeals V, Baroda

MA 52/AHD/2014

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5714 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 20-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Proportionate interest; Corroborative evidences
• Section: 45(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER LATE SMT. VELUBEN JALEJAR CONTRACTOR L./H. BARJOR JELEJAR CONTRACTOR C/O. RAJENDRA K. SHAH & CO. 2,2 ND FLOOR, AMEEBELA BLDG., OPP. OLD GUJ. HIGH COURT, NAVRANGPURA, AHMEDAB AD - 14 PAN : ADTPC3348P (APPELLANT) VS THE CIT(A) - 5 , BARODA (RESPONDENT) REVENUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 05 - 01 - 2 018 DATE OF PRONOUNCEMENT : 12 - 02 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS MA IS ARISING OUT OF ITA NO. 9 84/AHD/2006 FOR ASSESSMENT YEAR 2001 - 02 VIDE ORDER DATED 0 7 TH FEB, 2014 . 2. THE ASSESSEE HAS STATED IN THE MISC. APPLICATION THAT THERE IS A MISTAK E APPARENT F ROM RECORD PERTAINING TO GROUND NO. 3 OF APPEAL OF THE ASSESSEE REGARDING AMOUNT OF COMPENSATION OF RS. 93 LACS WITHHELD BY THE GOVERNMENT AS AN INTEREST LIABLE TO TAX. MA NO . 52 / A HD/20 14 (ARISING OUT OF ITA N O. 984/AHD/2006 ) A SSESSMENT YEAR 20 01 - 02 M A NO. 52 /AHD/201 4 {ARISING OUT OF IT A NO. 9 84 /A HD/20 06 } A.Y. 20 01 - 02 PAGE NO LATE SMT. VELUBEN J. CONTRACTOR VS. CIT(A) - V 2 3. AT THE TIME OF HEARING OF THE AFORESAID MISC. APPLICATION NOBODY HAS ATTENDED FROM THE SIDE OF THE ASSESSEE IN SP IT E OF GIVING A NUMBER OF OPPORTUNITIES. ON THE OT H ER HAND LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF ITAT. AFTER PERUSAL OF THE MATERIAL O N RECORD, WE HAVE NOTICED THAT T H E CO - ORDINATE BENCH OF THE ITAT VID E ITA 984/AHD/2006 DATED 7 TH FEB, 2014 HAS STATED THAT ALL THE THRE E GROUNDS OF APPEAL ARE INTERCONNECTED AND THEREFORE THESE ARE ADJUDICATED AS UNDER : - 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE DISPUTE IN THE PRESENT CASE IS ABOUT THE TAXABILITY OF COMPENSATION AND INTEREST RECEIVED BY THE ASSESSEE ON COMPULSORY ACQUISITION OF LAND. CIT(A) IN HIS ORDER HAS NOTED THAT THE LAND ACQUISITION OFFICER IN HIS AWARD, WHICH IS REPRODUCED BY THE A.O, HAS CLEARLY MENTIONED THAT THE ACQUIRED LANDS WERE PART AND PARCEL OF SANTRAMPUR WHICH WAS INCLUDED IN THE DEVELOPMENT MAP AND IN THE CITY SURVEY AREA LONG BACK IN THE ORDER. IT HAS BEEN FURTHER STATED BY THE LAND ACQUISITION OFFICER IN THE REPORT THAT THE ACQUIRED LANDS WERE BEING UTILIZED AS NON AGRICULTURAL LANDS AND WERE MOSTLY USEFUL FOR RESIDENCES. IT HAS BEEN FURTHER STATED THAT SEVERAL HOUSES WERE CONSTRUCTED ON SOME OF THE PLOTS AND THEREFORE IT WAS CLEAR THAT THE ACQUIRED LANDS WERE FULLY DEVELOPED AND WERE HAVING POTENTIA LITIES FOR RESIDENTIAL HOUSES. CIT(A) HAS FURTHER NOTED THAT THE HON BLE GUJARAT HIGH COURT IN ITS ORDER DATED 07.07.2000 (1 ST APPEAL NO. 106/2000) HAS ALSO CONSIDERED THE LANDS ACQUIRED TO BE NON AGRICULTURAL LANDS. CIT(A) HAS ALSO NOTED THAT BEFORE HON BLE HIGH COURT, ONE OF THE WITNESSES HAS CLAIMED THAT ALL THE ACQUIRED LANDS WERE CONVERTED INTO NON AGRICULTURAL USE SINCE MANY YEARS AND THE ACQUIRED LANDS WERE FULLY DEVELOPED AND COULD HAVE BEEN SOLD TO CO - OPERATIVE SOCIETIES FOR CONSTRUCTION OF RESIDE NTIAL HOUSES. THE AFORESAID FACT HAS BEEN NOTED IN THE ORDER OF HIGH COURT. CIT(A) HAS ALSO NOTED THAT THE ASSESSEE HAS BEEN CONTESTING IN SEVERAL COURT S FOR COMMERCIAL COMPENSATION CONTENDING THAT THE LAND IS COMMERCIAL LAND BUT BEFORE INCOME TAX DEPART MENT, THE ASSESSEE PLEADS THE LAND TO BE AGRICULTURAL LAND. CIT(A) HAS FURTHER GIVING A FINDING THAT THE LANDS IN QUESTION WERE WITHIN THE MUNICIPAL LIMITS AS THE SAME WERE ALLOTTED CITI SURVEY NUMBERS BY THE LOCAL AUTHORITY, THE LANDS WERE USED FOR DISTI LLERY, ICE FACTORY, RICE AND PULSE MILLS LONG BEFORE THE ACQUISITION AND THEREFORE WAS PUT TO COMMERCIAL USE. IN VIEW OF THE AFORESAID FACTS AND RELYING ON THE OBSERVATION OF HON BLE HIGH COURT AND LAND ACQUISITION OFFICER, CIT(A) HAS HELD THE COMPENSATIO N RECEIVED IN LIEU OF COMPULSORY ACQUISITION OF LAND TO BE TAXABLE AS LONG TERM CAPITAL GAINS UNDER SECTION 45(5) OF THE ACT. WITH RESPECT TO THE INTEREST CIT(A) HAS NOTED THAT THE HON BLE HIGH COURT HAS AWARDED INTEREST AT 12% OF THE COMPENSATION FROM THE DATE OF ACQUISITION TO THE DATE OF ORDER AND THE INTEREST WAS PAYABLE FOR THE PERIOD 1979 - 2000. THE A.O. HAS WORKED OUT THE INTEREST TO BE DISTRIBUTED AMONG THE 3 CO - OWNERS AND HAS WORKED OUT THE PROPORTIONATE INTEREST TO BE TAXED IN RESPECTIVE ASSESSMEN T YEARS. BEFORE US, THE LD. A.R. COULD NOT CONTROVERT THE FINDINGS OF CIT(A), NOR HAS BROUGHT ANY CONTRARY MATERIAL ON RECORD IN SUPPORT OF HIS STAND. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS UPHOLD THE ORDER OF CIT(A) AN D THUS THE GROUNDS RAISED BY ASSESSEE ARE DISMISSED WE OBSERVE THAT THE ITAT VIDE AFORESAID ORDER HAS CONFIRMED THE FINDING OF T HE LD. CIT(A) THAT THE COMPENSATION RECEIVED IN LIEU OF COMPULSORY ACQUI SI TION OF LAND TO BE TAXABLE AS LONG TERM CAPITAL G AINS AS PER TH E PROVISION OF SECTION 45(5) M A NO. 52 /AHD/201 4 {ARISING OUT OF IT A NO. 9 84 /A HD/20 06 } A.Y. 20 01 - 02 PAGE NO LATE SMT. VELUBEN J. CONTRACTOR VS. CIT(A) - V 3 OF THE ACT. THE LD. CIT HAS HELD THAT THE HON BLE HIGH COURT HAS AWARDED INTEREST AT RS. 12% OF THE COMPENSATION FROM THE DATE OF ACQUISITION TO THE DATE OF ORDER AND THE INTEREST W A S PAYABLE FO R THE PERIOD 1979 TO 2000. THE ITAT HAS ALSO STATED THAT AR COULD NOT CONTROVERT THE FINDINGS OF CIT(A) NOR HAS BROUGHT ON RECORD ANY CONTRARY MATERIAL ON RECORD IN SUPPORT OF HIS CLAIM. EVEN DURING THE COURSE OF HEARING OF THIS MISC. APPLICATION NEITHER ANY BODY HAS ATTEN DED FROM THE SIDE OF THE ASSESSEE NOR FURNISHED RELEVANT SUPPORTING EVIDENCES TO SUBSTANTIATE THAT THERE IS AN APPARENT MISTAKE FROM RECORD. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES THE MISC. APPLICATION OF THE ASSESSEE IS REJECTED. 4. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 12 - 02 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 12 /02 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,