SHARDA DEVI KEDIA, DURG,DURG V. INCOME TAX OFFICER-2(1), BHILAI, DURG

ITA 219/RPR/2024

AI Insights

The case involves Sharda Devi Kedia, the appellant, who contested the taxability of compensation received from the compulsory acquisition of her land by the State Government under the NHAI Act, 1956. The Income Tax Officer had treated the compensation as short term capital gain, which was upheld by the CIT(Appeals) and later by the Tribunal. The main legal contention was whether the compensation was exempt from income tax under Section 96 of the RFCTLARR Act, 2013, which was found not applicable as the acquisition was under an enactment specified in the 'Fourth Schedule' of the RFCTLARR Act, 2013.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 46709 (ITAT-RAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Other Referred Cases: M/s. Heritage Buildcon Pvt. Ltd. Vs. Pr. CIT & Ors., Abhijit Subhash Gaikwad v. DCIT, Shri Jagdish Arora Vs. ITO, Ward- 1(2), Agra, C. Nanda Kumar Vs. Union of India, DCIT- 27(1) Vs. M/s. Ganga Developers
• Laws Referred To: Income-tax Act, 1961, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: R.B DOSHI
• Keywords: Condonation of delay; Capital asset; Cost of acquisition; Capital Gains; TDS; Earning of tax free income; Competent authority
• Section: 143(3); 143(2); 263; 22; 113; 13; 10; 2(14); 20

Judgement Text

"आयकर अपीलीय अधिकरण न्यायपीठ रायपुर में। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.219/RPR/2024 नििाारण वर्ा / Assessment Year : 2017-18 Sharda Devi Kedia Near Satyam Talkies, Charoda, Durg (C.G.)-490 025 PAN: AKWPK8455F .......अपीलार्थी / Appellant बिाम / V/s. The Income Tax Officer-2(1), Bhilai (C.G.) ……प्रत्यर्थी / Respondent Assessee by : Shri R.B Doshi, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई की तारीख / Date of Hearing : 23.12.2024 घोषणा की तारीख / Date of Pronouncement : 26.12.2024 2 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 03.10.2023, which in turn arises from the order passed by the A.O under Sec.143(3) of the Income- tax Act, 1961 (in short ‘the Act’) dated 26.11.2019 for the assessment year 2017-18. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. The A.O erred in holding that the amount received on compulsory acquisition of land is chargeable to tax as short term capital gain. He erred in making addition of Rs.65,51,552/-rejecting the claim of appellant and denying exemption u/s.10. The addition made by the A.O is arbitrary, without appreciating the facts of the case properly and is not justified. 2. The appellant reserves the right to amend, modify or add any of the ground/s of appeal.” 2. At the threshold, we may herein observe that the present appeal involves a delay of 166 days. After considering the application filed by the Ld. Authorized Representative (for short ‘AR’) seeking condonation of delay of 166 days involved in filing of the present appeal a/w. her “affidavit” dated 19.06.2024, we are of the view that as there are bonafide reasons leading to the impugned delay involved in filing of the present appeal, therefore, the same merits to be condoned. 3 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 3. Succinctly stated, the assesse had e-filed her return of income for A.Y.2017-18 on 27.02.2018 declaring an income of Rs.4,02,050/-. Subsequently, the case of the assesse was selected for scrutiny assessment u/s. 143(2) of the Act for verifying two issues viz. (i) claim of large exempt income; and (ii) capital gains/loss on sale of property. 4. During the course of assessment proceedings, the A.O observed that the assessee had received compensation of Rs.72,79,552/- on acquisition of two pieces of lands at Village: Bhatagaon, Tehsil : Kurud, District : Dhamtari by the State government under “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLAAR Act). On a perusal of the reply filed by the assesse, the A.O gathered details about the lands owned by the assessee that were acquisitioned by the state government, viz. (i) land admeasuring 0.02 hectare bearing khasra No.1088/3 that was purchased on 10.09.2014 for Rs.3,92,000/- a/w. stamp duty of Rs.20,400/-; and (ii) land admeasuring 0.09 hectare bearing khasra No.1088/2 that was purchased on 24.07.2014 for Rs.3 lacs a/w. stamp duty payment of Rs.15,600/-. 5. Ostensibly, the aforesaid lands were acquired by NHAI for the construction of NH-30 as per order passed by the SDO, Kurud vide case No.12/v-82/15-16, dated 12.07.2016 against which, the compensation was paid to the assessee on 14.09.2018. Also, the A.O observed that the 4 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 competent authority had made payment of compensation after deduction of tax at source (TDS). The A.O observed that as per “Award Order” dated 12.07.2016, the subject lands owned by the assessee were acquired as per sub-section 1 of Section 46 of RFCTLAAR Act, 2013 as per Gazztte Notification of Government of India, New Delhi, dated 09.02.2016. Observing, that the CBDT vide its Circular No.36/2016, dated 25.10.2016 had held that as per Section 96 of the RFCTLAAR Act, 2013, the income tax shall not be levied on any award or agreement made (except those made under section 46), the A.O was of the view that as the compensation had been received by the assesses on compulsory acquisition of land u/s. 46 of the RFCTLAAR Act, 2013, therefore, she was not entitled for exemption from the income tax as per Section 96 of the RFCTLAAR Act, 2013. The A.O held the compensation of Rs.72,79,552/- received by the assessee as sale proceeds of a short term capital asset, and thus, after allowing deduction of the cost of acquisition/stamp duty charges worked out the short term capital gain (STCG) on transfer of the same at Rs.65,51,552/-. Accordingly, the A.O vide his order passed u/s. 143(3) of the Act, dated 26.11.2019 determined the income of the assessee at Rs.67,93,600/-. 6. Aggrieved, the assesse carried the matter in appeal before the CIT(Appeals). As the assesse had failed to participate in the proceedings before the first appellate authority, therefore, the CIT(Appeals) was 5 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 constrained to proceed with and dispose off the appeal after considering the merits of the case vide an ex-parte order, observing as under: “6. Even on merits, a decision based on material available on record, would go against appellant. 6.1 Ld. JAO has opined on the issues as follows in assessment order, relevant extract of the assessment order is reproduced hereunder for ease of reference: “6. As per sub-section 42A of section 2 of the Income tax Act, 1961 \"short-term capital asset means a capital asset held by an assessee for not more than thirty-six months immediately preceding the date of its transfer\". In the present case of the assessee the land bearing khasra no. 1088/3 was purchased on date 10-09-2014 and transferred on 12-07-2016 i.e after a period of 22 months 2 days, similarly the other land bearing khasra no. 1088/2 was purchased on date 24-07-2014 and transferred on 12-07-2016 Le after a period of 23 months 18 days. Thus, from the above it is clear that none of the two pieces of land had been held by the assessee, prior to its transfer, beyond the period of 36 months hence the gain arising out of the above transfer(acquisition by the state govt.) shall be Short Term Capital Gain arising from the transfer of a short-term capital asset as per sub-section 428B of section 2 of LT.Act, 1961 calculated as under which is added to the total income of the assessee u/s 45 to be taxed at rate applicable:- 1. Amount of compensation received in respect of land khasra no-1088/3 - Rs.22,10,208/- Less- Cost of acquisition + Stamp - Rs. 4,12,400/- Short term capital gain - Rs. 17,97,808/- 2. Amount of compensation received in respect of land khasra no-1088/2 - Rs.50,69,344/- Less-Cost of acquisition + Stamp - Rs. 3,15,600/- Short term capital gain - -Rs.47,53,744/- 6 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Total Short Term Capital Gain - - Rs.65,51,552/- The assessee was fully aware of the above facts as is evident from the various documents furnished by her during the course of assessment but has willfully chosen to under-report her income by not offering the STCG accruing out of transfer of short term capital asset as per the provisions and has also misrepresented the facts and is thus liable for penalty u/s 270A(1) r.w.s 270A(9)(a). Therefore penalty u/s 270A is being separately initiated.\" 6.2 I have carefully considered order passed by LJAO, appeal documents and Form 35 with regards to issue in appeal. It has been averred by the appellant in Ground of appeal one that the capital gains are exempt under section 10 of the IT Act, 1961 and that the Ld.JAO erred in holding that the amount received in compulsory acquisition of land is to be charged as STCG. As regards the section 96 of the RFCTLAAR Act, 2013 effective from 01/01/2014, it mandates that exemption is available to award/agreement under the Act, with exception of section 46. Section 46 prescribes the procedure for private negotiation of the land purchase by other than specified persons (as defined in 46(6)(b)). The benefit of Section 96 is not available when a land is purchased through private negotiations by a person other than a specified person under Section 46(1). Therefore, in cases other than those covered by Section 46 of the 2013 Land Acquisition Act, the levy of income-tax is barred by Section 96. The relevant sections of RFCTLAAR, 2013, Circular No. 36/2016 dated 25/10/2016 and of ITA 1961 are reproduced as below for ready reference- SECTION 96 of RFCTLAAR, 2013 96. Exemption from income-tax, stamp duty and fees.-No income tax or stamp duty shall be levied on any award or agreement made under this Act, except under section 46 and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. SECTION 46 of RFCTLAAR, 2013 7 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 46. Provisions relating to rehabilitation and resettlement to apply in case of certain persons other than specified persons.-(1) Where any person other than a specified person is purchasing land through private negotiations for an area equal to or more than such limits, as may be notified by the appropriate Government, considering the relevant State specific factors and circumstances, for which the payment of Rehabilitation and Resettlement Costs under this Act is required, he shall file an application with the District Collector notifying him of- (a) intent to purchase; (b) purpose for which such purchase is being made; (c) particulars of lands to be purchased. (2) It shall be the duty of the Collector to refer the matter to the Commissioner for the satisfaction of all relevant provisions under this Act related to rehabilitation and resettlement. (3) Based upon the Rehabilitation and Resettlement Scheme approved by the Commissioner as per the provisions of this Act, the Collector shall pass individual awards covering Rehabilitation and Resettlement entitlements as per the provisions of this Act. (4) No land use change shall be permitted if rehabilitation and resettlement is not complied with in full. (5) Any purchase of land by a person other than specified persons without complying with the provisions of Rehabilitation and Resettlement Scheme shall be void ab initio: Provided that the appropriate Government may provide for rehabilitation and resettlement provisions on sale or purchase of land in its State and shall also fix the limits or ceiling for the said purpose. (6) if any land has been purchased through private negotiations by a person on or after the 5th day of September, 2011, which is more than such limits referred to in sub-section (1) and, if the same land is acquired within three years from the date of commencement of this Act, then, forty per cent of the compensation paid for such land acquired shall be shared with the original land owners. 8 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Explanation. For the purpose of this section, the expression- (a) - original land owner/ refers to the owner of the land as on the 5th day of September, 2011; (b) \"specified persons\" includes any person other than- (1) appropriate Government; (ii) Government company; (iii) association of persons or trust or society as registered under the Societies Registration Act, 1860 (21 of 1860), wholly or partially aided by the appropriate Government or controlled by the appropriate Government Circular No. 36/2016, dated 25-10-2016 'SECTION 4, READ WITH SECTION 10(37), OF THE INCOME- TAX ACT, 1961 AND SECTION 96 OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 (RFCTLARR ACT) - INCOMECHARGEABLE AS - TAXABILITY OF COMPENSATION RECEIVED BY LAND OWNERS FOR LAND ACQUIRED UNDER RFCTLARR ACT CIRCULAR NO.36/2016 [F.NO.225/88/2016-ITA.II], DATED 25-10-2016 Under the existing provisions of the Income-tax Act, 1961 (the Act), an agricultural land which is not situated in specified urban area, is not regarded as a capital asset. Hence, capital gains arising from the transfer (including compulsory acquisition) of such agricultural land is not taxable. Finance (No. 2) Act, 2004 inserted section 10(37) in the Act from 1-4-2005 to provide specific exemption to the capital gains arising to an Individual or a HUF from compulsory acquisition of an agricultural land situated in specified urban limit, subject to fulfilment of certain conditions. Therefore, compensation received from compulsory acquisition of an agricultural land is not taxable under the Act (subject to fulfilment of certain conditions for specified urban land). 2. The RFCTLARR Act which came into effect from 1st January, 2014, in section 96, inter alia provides that income-tax shall not be levied on any award or agreement made (except those made under 9 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 section 46) under the RFCTLARR Act. Therefore, compensation received for compulsory acquisition of land under the RFCTLARR Act (except those made under section 46 of RFCTLARR Act), is exempted from the levy of income-tax. 3. As no distinction has been made between compensation received for compulsory acquisition of agricultural land and non-agricultural land in the matter of providing exemption from income-tax under the RFCTLARR Act, the exemption provided under section 96 of the RFCTLARR Act is wider in scope than the tax-exemption provided under the existing provisions of Income-tax Act, 1961. This has created uncertainty in the matter of taxability of compensation received on compulsory acquisition of land, especially those relating to acquisition of non-agricultural land. The matter has been examined by the Board and it is hereby clarified that compensation received in respect of award or agreement which has been exempted from levy of income- tax vide section 96 of the RFCTLARR Act shall also not be taxable under the provisions of Income-tax Act, 1961 even if there is no specific provision of exemption for such compensation in the Income- tax Act, 1961. 4. The above may be brought to the notice of all concerned.' It is seen from perusal of the assessment order it is seen that Ld.JAO has gone through the facts of case and concluded that land acquired is through process undertaken by other than specified person under section 46. This fact clearly means that the said land transaction is out of mischief of section 96, and it will be taxable under relevant provisions of ITA 1961. The second issue is whether the said land is agricultural land? Exemption has been granted under section 10(37) of ITA 1961 qua Capital Gains on sale of Agricultural land subject to certain conditions. Section 10(37) is reproduced as below for ready reference- Section 10(37) of ITA 1961 INCOMES WHICH DO NOT FORM PART OF TOTAL INCOME Incomes not included in total income. 10 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 10. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- ………………….. [(37) in the case of an assessee, being an individual or a Hindu undivided family, any income chargeable under the head \"Capital gains\" arising from the transfer of agricultural land, where- (i) such land is situate in any area referred to in item (a) or item (b) of sub- clause (iii) of clause (14) of section 2; (ii) such land, during the period of two years immediately preceding the date of transfer, was being used for agricultural purposes by such Hindu undivided family or individual or a parent of his; (iii) such transfer is by way of compulsory acquisition under any law, or a transfer the consideration for which is determined or approved by the Central Government or the Reserve Bank of India; (iv) such income has arisen from the compensation or consideration for such transfer received by such assessee on or after the 1st day of April, 2004. Explanation.- For the purposes of this clause, the expression \"compensation or consideration includes the compensation or consideration enhanced or further enhanced by any court, Tribunal or other authority; ……………………. 55. Clauses (37) and (38) inserted by the Finance (No. 2) Act, 2004, w.e.f. 1-4-2005. For relevant case laws and Circular No. 36/2016, dated 25-10-2016 [Taxability of compensation received by land owners for land acquired under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR ACT)J, see Taxmann's Master Guide to Income- tax Act. It is averred that the transaction is exempt under section 10(37) of IT Act, 1961 i.e., land is agricultural in nature. Against the same a definitive conclusion has been reached by Ld.JAO in para 5 of the assessment order regarding the nature of land parcels sold. Ld.JAO 11 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 gives finding that '5. Here it is pertinent to mention that from the purchase deed of the land and the Order of the SDO, Kurud (Competent authority for land acquisition by the Govt.) available on record it is seen that both the pieces of land has been acquired by the assessee from poor farmers through Power of Attorney holder Sh. Madhusudan Kedia who happens to be the husband of the assessee, at a very low price as agricultural land and later got the same diverted for residential use for obtaining huge compensation from the government.\" It is seen from perusal of above para that the land use has been changed from agricultural to non-agricultural before the sale. In that case, I hold that the exemption under section 10(37) will not be available to the appellant and capital gains will be assessable in its hands. In the case of Abhijit Subhash Gaikwad v. DCIT 60 taxmann.com 259, it has been held by the Hon'ble Pune ITAT that 'In absence of fulfilment of fundamental fact that land was used for agriculture, merely mentioning of land as agricultural land in purchase deed or sale deed or even in revenue records cannot establish case of assessee that land sold by it was an agricultural land' Headnotes are extracted as below for a ready reference- Section 2(14) of the Income-tax Act, 1961- Capital gains - Capital asset (Agricultural land) - Assessment year 2009-10-Whether in absence of fulfilment of fundamental fact that land was used for agriculture, merely mentioning of land as agricultural land in purchase deed or sale deed or even in revenue records cannot establish case of assessee that land sold by it was an agricultural land - Held, yes [Para 23] [In favour of revenue] Relevant paras are extracted from the said judgment for ready reference 14. Under the definition, land, which is agricultural land falls outside the purview of being capital asset subject to fulfilment of sub-clauses (a) and (b), which inter alia provided that the land in question should not be within the jurisdiction of a municipality or cantonment board, its population of not less than 10,000 persons and further it should not be in an area not being more than 8 kilometers from the municipal limits 12 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 or cantonment board. In the present case, the fulfilment of conditions in clauses (a) and (b) are considered to have been met i.e. the land in question is situated beyond 8 kilometers from the local limits of any municipality or cantonment board and also the area in which the said land is situated does not have population of more than 10,000. The only question which remains to be adjudicated in the present case is whether the land sold by the assessee was an agricultural land and whether it falls outside the definition of capital asset. 15. The Supreme Court in CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 had held that 'agriculture' in its root sense mean 'agar', a field and 'culture', i.e. cultivation of a field. 'Agriculture' implies expenditure of human skills and labour upon land. After exhaustively discussing the various cases dealing with the subject, the Apex Court held that agriculture Involved \"basic operations\", such as tilling of land, sowing of seeds, planting etc. and \"subsequent operations\", such as weeding. tending, pruning, cutting, harvesting and rendering the produce fit for market. 16. Further, the Hon'ble Gujarat High Court in Siddharth J. Desai (supra) had laid down 13 tests to determine whether a particular land is agricultural land or nor which are as under:- \"(1) Whether the land was classified in the revenue records as agricultural land whether it was subject to the payment of land revenue? (2) Whether the land was actually or ordinarily used for agricultural purposes at or about the relevant time? (3) Whether such user of the land was for a long period or whether it was of a temporary character or by way of a stopgap arrangement\" (4) Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land? (5) Whether, the permission under s.65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land? If so, when and by whom (the vendor or the vendee)? Whether such permission was in respect of a portion of the land and if it was obtained in the 13 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 past, what was the nature of the user of the said portion of the land on the material date? (6) Whether the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such cesser and/or alternative user was of a permanent or temporary nature? (7) Whether the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled? Whether the owner meant or intended to use it for agricultural purposes? (8) Whether the land was situate in a developed area? Whether its physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agricultural? (9) Whether the land itself was developed by plotting and providing roads and other facilities? (10) Whether there were any previous sales of portions of the land for non- agricultural use? (11) Whether permission under s.63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist? If so, whether the sale or intended sale to such non-agriculturist was for non- agricultural or agricultural user? (12) Whether the land was sold on yardage or on acreage basis? (13) Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield?\" 17. The Hon'ble Gujarat High Court further held that at the risk of repetition, we may mention that not all of these factors would be present or absent in any case and that in each case one or more of those factors may make appearance and that the ultimate decision will 14 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 have to be reached on a balanced consideration of the totality of circumstances. 18. The Supreme Court in Smt. Sarifabibi Mohmed Ibrahim (supra) had laid down as under:- \"Whether a piece of land is agricultural land or not is essentially a question of fact. Several tests have been evolved in decisions of the Supreme Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case, having regard to the facts and circumstances of that case. There may be factors both for or against a particular point of view. The court has to answer the question on a consideration of all of them a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts.\" 19. The Bombay High Court in V.A. Trivedi (supra) ie. the decision relied upon by the Assessing Officer, after considering the facts of the case, it was held that to ascertain the true character and nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time, prior to the relevant date and further whether on the relevant date the land was intended to be put to use for agricultural purposes for a reasonable span of time in the future. 20. Following the judicial proposition laid down by the Supreme Court and various High Courts in order to determine the nature of the agricultural land, the first and foremost test was whether the land was actually and ordinarily used for the purpose of agriculture. Where the said land had not been actually cultivated in the recent past and/or there was no intention of using the land for agricultural purposes in near future, was held by the courts to be the most conclusive feature to determine the nature of land in question. Merely because the land was shown as agricultural in revenue records was held to be not the conclusive test to determine that the land was agricultural land. 21. The Bombay High Court in Gopal C. Sharma (supra) had held as under.- ‘The expression \"agricultural land\" is not defined in the Income Tax Act, 1961. The underlying object of the Act to exempt agricultural income from income tax is to encourage actual cultivation or de facto 15 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 agricultural operations. Actual use of the land for agricultural purpose or absence thereof at the relevant time is undoubtedly one of the crucial tests for the determination of the issue. It is well-settled that the nature and character of land may undergo a change depending upon its situation, growth of the locality or zone in which it is situate and its potentiality. The fact that the land is sold or transferred to a non-agriculturist for a non-agricultural purpose or that it is likely to be used for non-agricultural purposes soon after its transfer is also a relevant factor germane to the determination of the issue. Merely because the land was used for agricultural purposes in the remote past or its continues to be assessed to land revenue a agricultural land is not decisive. In order to ascertain the true character and nature of the land it must be seen whether the land had been put to use for agricultural purposes for a reasonable span of time prior to the relevant date and further as to whether on the date of the transfer the land in question was intended to be put to use by the purchaser for agricultural purposes for a reasonable span of time in future' 22. The judicial precedents have laid down that the expression 'agricultural land\" though not defined under the Income-tax Act, but would be applicable to such land where the actual user of the land was for agricultural purposes in recent times. Just because the land was used for agricultural purposes in the remote past or it continues to be assessed in the land revenue records as agricultural land is not decisive to determine the nature of land being agricultural land. Where the land has not been put to use for agricultural purposes for reasonable span of time prior to the date of its transfer, the land in question cannot be held to be agricultural land. The onus was upon the assessee to establish its case of having cultivated the land in recent past and in the absence of assessee having discharged its onus and merely because the land is recorded as agricultural land in the revenue records, does not establish the case of assessee.\" Nothing is on record qua above to establish that the land in question was indeed agricultural land. Thus, Ld.JAO has correctly treated the land as non-agricultural. Nothing has been bought on record against findings of Ld.JAO and based on material available on record it is held that said land parcels were non-agricultural in nature. Next contention of the appellant is with regards the receipt being LTCG or STCG. Ld.JAO has given elaborate calculation with dates and 16 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 nothing has been bought on record on behalf of appellant to dispute the same. The action of Ld.JAO is left undisturbed. 7. Thus, order of LJAO is upheld as onus has remained undischarged on part of appellant. On merits, the grounds of appeal are rejected and appeal for A.Y. 2017-18 is dismissed. 8. As a result, appeal is Dismissed.” 7. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 8. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 9. Controversy involved in the present appeal lies in a narrow compass i.e. as to whether or not, both the lower authorities are right in law and facts of the case in observing that the amount received by the assessee on compulsory acquisition of her land under NHAI Act, 1956 is taxable under the Income Tax Act, 1961? 10. We find that a similar issue had come up before the Tribunal for adjudication in the case of M/s. Heritage Buildcon Pvt. Ltd. Vs. Pr. CIT & Ors., ITA No.35/RPR/2022 & Ors, dated 17.08.2023, wherein after relying upon a host of judicial pronouncements a/w. CBDT Circular 17 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 No.36/2016, dated 25.10.2016, it was held that the compensation received on acquisition of the lands of the assessee company under NHAI Act, 1956 i.e. an enactment falling under the “Fourth Schedule” of the RFCTLARR Act, 2013, as per Section 96 r.w.s. 105(1) of RFCTLARR Act, 2013 r.w. OM dated 06.06.2019 of the CBDT, the compensation received by the assessee company was not exempt under RFCTLARR Act, 2013. For the sake of clarity, the observations of the Tribunal are culled out as under: “13. We have thoughtfully considered the issue in the present appeal. Before proceeding any further, we deem it fit to cull out the provisions of the RFCTLARR Act, 2013, which would have a strong bearing on the adjudication of the issue. Section 96, Section 105, and Section 113 of the RFCTLARR Act, 2013 reads as under: “Section 96: Exemption from income tax, stamp duty, and fees No income tax or stamp duty shall be levied on any award or agreement made under this Act, except under section 46 and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. Section 105 : (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. (2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule. (3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. 18 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 (4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.” Section 113 : “ (1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty: Provided that no such power shall be exercised after the expiry of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.” 14. Section 96 of the RFCTLARR Act, 2013 provides that no income tax or stamp duty shall be levied on any award or agreement made under this Act, except under section 46, and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. A plain reading of Section 96 on a standalone basis, though, supports the assessee's claim that compensation received on the acquisition of its lands under the RFCTLARR Act, 2013 would not be exigible for any income tax but sub-section (1) of Section 105 of the RFCTLARR Act, 2013 which has an overriding effect, therein provides that subject to sub-section (3) of Section 105, the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the “Fourth Schedule.” Ostensibly, the exception carved out in sub-section (3) of Section 105 of the Act is in the context that the provisions of RFCTLARR Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement specified in the Second and Third Schedule, to the extent the same are beneficial to the affected families whose lands had been acquired, would apply to the cases of land acquisition under the enactments specified in the “Fourth Schedule”; or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. In sum and substance, the only exception to the applicability of the enactments relating to the land acquisitions under the enactments specified in the “Fourth Schedule” can be traced in sub-section (3) to Section 105 of 19 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 the RFCTLARR Act, 2013), which too had been made dependent upon the issuance of a notification by the Central Government within one year from the date of commencement of this Act, but the same applies only in the context of the determination of compensation in accordance with First Schedule and rehabilitation and resettlement specified in accordance with Second and Third Schedule. 15. In our considered view, the exception carved out in sub-section (1) of Section 105 of the RFCTLARR Act, 2013 has a limited applicability, i.e., concerning the determination of the compensation and rehabilitation and resettlement under the RFCTLARR Act, 2013. By no stretch of the imagination, the same can be applied to the remaining provisions of the RFCTLARR Act, 2013. Our conviction above is fortified by the OM dated 06.06.2019 issued by the CBDT, New Delhi, wherein it has been clarified that Section 96 of the RFCTLARR Act, 2013 does not apply to the cases where acquisition has been made by entities mentioned in the “Fourth Schedule” of the RFCTLARR Act, 2013. For the sake of clarity, OM dated 06th June 2019 issued by the CBDT, New Delhi, is culled out as under (relevant extract): “2. In the matter, the Ministry of Rural Development vide Notification No. S.O. 2368(E) dated 28.08.2015 has made applicable the provisions of the RFCTLARR Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and Infrastructure amenities in accordance with the Third Schedule to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act. 3. In this regard, kind attention is invited to Section 105(1) of the RFCTLARR Act, 2013 which specifically excludes the application of any section of the RFCTLARR Act, 2013 to the Acts mentioned in the Fourth Schedule. The only exception to Section 105(1) is Section 105(3) which makes only the First, Second and Third Schedule applicable to the Fourth Schedule Acts. 4. Currently for the land acquisition undertaken as per enactments specified in the Fourth Schedule of the RFCTLARR Act, 2013, no other provisions of the RFCTLARR Act, 2013 would be applicable except for the provisions relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and Infrastructure amenities in accordance with the Third Schedule. Accordingly, the benefit of Section 96 of the RFCTLARR Act, 2013 exempting income tax on the award would not be applicable for cases in which land acquisition is undertaken as per the enactments specified in the Fourth Schedule to the said Act. However, the provisions of 20 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Section 10(37) of the Income Tax Act, 1961 would continue to exempt any compensation or consideration received on transfer of agricultural land by way of compulsory acquisition subject to conditions specified therein. 5. The issue regarding taxability of compensation received on compulsory acquisition of agricultural and non agricultural land as per the provisions of the RFCTLARR Act, 2013 has already been clarified vide circular No.36/2016 dated 25.10.2016 of CBDT.” (emphasis supplied by us) 16. Based on our observations above, it is clear beyond doubt and supported by the OM dated 06.06.2019 of the CBDT, New Delhi, that no provisions of the RFTCLARR Act, 2013, except for provisions relating- to determination of the compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule would apply to the enactments relating to land acquisition specified in the “Fourth Schedule.” Also, as spelled out in OM dated 06.06.2019 (supra), the benefit of Section 96 of the RFCTLARR Act, 2013, exempting income tax on the award, would not be applicable for cases in which land acquisition is undertaken as per the enactments specified in the “Fourth Schedule” to the said Act. 17. Admittedly, it is an undisputed fact that the lands of the assessee had been acquired under the NHAI Act, 1956. The aforesaid factual position though undisputed and can safely be gathered from a perusal of the Notification dated 13th June 2016 as per which lands of the assessee had been acquired under the NHAI Act, 1956 (1956 of 48), Pages 35-43 of APB. 18. Considering the aforesaid factual position, i.e., acquiring of the lands of the assessee company under NHAI Act, 1956, an enactment falling under the “Fourth Schedule” of the RFCTLARR Act, 2013, we find no infirmity in the view taken by the Pr. CIT that as per Section 96 r.w.s. 105(1) of RFCTLARR Act, 2013 r.w. OM dated 06.06.2019 of the CBDT, the compensation received by the assessee company on acquiring of its lands was not exempt under RFCTLARR Act, 2013. 19. Apropos the exemption from levy of income-tax available u/s.10(37) of the Act, we concur with the view of the Pr. CIT that as the same was only available to the individual and HUF, the assesse company on the said count itself, was not entitled to it. Apart from that, the pre-condition for enabling an eligible assessee for exemption u/s.10(37) of the Act, i.e., usage of land for agricultural purposes during the period of two years immediately preceding the date of transfer of the same by the assessee, i.e., HUF or individual or a parent of his is also not satisfied 21 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 by the assessee. Be that as it may, it is the claim of the Ld. AR that the assesse company had at no stage during the assessment proceedings raised the claim of exemption u/s.10(37) of the Act. 20. Confining our adjudication to the entitlement of the assesse company for claiming exemption from income tax under the RFCTLARR Act, 2013, we are of a firm conviction, in terms of our observations recorded hereinabove, that the provisions contemplating an exemption from income tax on any award received under RFCTLARR Act, 2013 in light of the overriding effect of Section 105(1)(5) r.w. OM dated 06.06.2019 issued by the CBDT would not be available to the assesse company. 21. Apropos reliance placed by the Ld. AR on order passed by the Ministry of Rural Development, i.e., S.O No.2368(E) dated 28.05.2015, wherein in the exercise of powers conferred by sub-section (1) of Section 113 of the RFCTLARR Act, 2013 (30 of 2013), the Central Government to extend the benefits to the land owners under the RFCLARR Act, 2013 to similarly placed owners whose lands were acquired under the 13 enactments specified in “Fourth Schedule,” had passed an order i.e., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties), order 2015 w.e.f. 01.09.2015. As per the order mentioned above, the provisions of the RFCTLARR Act, 2013 relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule, and infrastructure amenities in accordance with the Third Schedule applied to all the cases of land acquisition specified in “Fourth Schedule”. For the sake of clarity, the aforesaid S.O. 2368 (E) dated 28.08.2015 is culled out as under: 22 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 We are unable to comprehend how the order mentioned above, i.e., S.O 2368 (E) (supra), would support the claim of the assessee company that the award received by it on the acquisition of its lands under the NHAI Act, 1956 was not taxable under the RFCTLARR Act, 2013. As observed by us hereinabove, the Central Government vide its order above, i.e., S.O 2368 (E) dated 28.08.2015, had come up with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Removal of Difficulties), order 2015 for extending the benefits available to the land owners under the RFCTLARR Act, 2013 to such other similarly placed land owners whose lands were acquired under the 13 enactments specified in the “Fourth Schedule,” but the same is only for a limited purpose, i.e., determination of compensation in accordance with First Schedule, rehabilitation and resettlement in accordance with Second Schedule and infrastructure amenities in accordance with Third Schedule. We cannot fathom how the exemption from income tax provided in Section 96 of the RFCTLARR Act, 2013, would be available to the assessee company based on the order above. We are of the considered view that the Ld. AR has misconstrued the order above, i.e., S.O 2368 (E) dated 28.08.2015, which has a limited scope of extending the benefits available to the land owners under the RFCTLARR Act, 2013 to similarly placed land owners whose lands were acquired under the 13 23 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 enactments specified in the “Fourth Schedule,” i.e., those concerning the determination of compensation in accordance with First Schedule, rehabilitation and resettlement in accordance with Second Schedule and infrastructure amenities in accordance with Third Schedule. 22. Apropos the reliance placed by the Ld. AR on the CBDT Circular No. 36/2016 dated 25th October 2016, it would be relevant to cull out the same, as under: 24 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Ostensibly, the CBDT Circular No.36/2016 (supra) only clarifies that no distinction had been made between compensation received for the compulsory acquisition of agricultural land and non-agricultural land in the matter of providing an exemption from income tax under the RFCTLARR Act, 2013. The CBDT had also clarified that Section 96 of the RFCTLARR Act, 2013, is more comprehensive in scope than the tax exemption provided under the existing provisions of the Income Tax Act, 1961. It has also clarified that compensation received in respect of an award or agreement which has been exempted from levy of income tax vide section 96 of the RFCLARR Act, 2013 was also not taxable under the provision of the Income Tax Act, 1961, even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961. 23. Once again, the Ld. AR, without appreciating the context and issue which the CBDT had clarified in its Circular No.36/2016, had 25 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 wrongly pressed the same into service. As observed by us hereinabove, the CBDT Circular No.36/2016 (supra) had clarified that exemption from income tax provided in Section 96 of the RFCTLARR Act, 2013 would be equally applicable on the compensation received on compulsory acquisition of agricultural land and non-agricultural land. Also, it was further clarified that if the compensation received in respect of award or agreement which has been exempted from levy of income tax vide section 96 of the RFCTLARR Act, 2013 would also not be taxable under the provision of Income Tax Act, 1961, even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961. Nothing is discernible from the CBDT Circular No.36/2016 (supra) from where it would be gathered that compensation received by the assessee company on the acquisition of its lands under enactments relating to land acquisition specified in the “Fourth Schedule” would be eligible for tax exemption u/s. 96 of the RFCTLARR Act, 2013. All that the CBDT Circular No.36/2016 (supra) clarifies is that the compensation received on compulsory acquisition of agricultural land and non- agricultural land under the RFCTLARR Act, 2013 would be similarly placed, AND that if the compensation received on compulsory acquisition of land is exempt u/s. 96 of the RFCTLARR Act, 2013, the same would not be taxable even if there is no specific exemption provision for such compensation in the Income Tax Act, 1961. Once again, we are unable to comprehend how the CBDT Circular No. 36/2016 (supra), which is absolutely in a different context /subject matter, would advance the claim of the assessee company that the compensation received on the acquisition of its lands under the NHAI Act, 1956 would be exempt u/s.96 of the RFCTLARR Act, 2013. 24. We shall now deal with the judicial pronouncements/orders pressed into service by the Ld. AR, in his attempt to prove that the compensation received by the assessee company on the acquisition of its lands under the NHAI Act, 1956, would be exempt u/s.96 of the RFCLARR Act, 2013. (A) ACIT Vs. Madaparabil Varkey Varghese & Ors., WA No.2219 of 2019 dated 11.11.2019 25. The Hon’ble High Court, vide its order mentioned above, had approved the view taken by the Hon’ble Single Judge in WP (C) No.1908 of 2019, dated 31.05.2019. It was observed by the Hon’ble High Court that the exemption contemplated under Section 96 of the RFCTLARR Act, 2013, does not draw any distinction between compensation received for compulsory acquisition based on the nature of the asset acquired. Also, relying on the judgment of the Hon’ble High Court of Andhra Pradesh in the case of C. Nanda Kumar Vs. Union of India, WP (C) No.7874 of 2016 and the CBDT 26 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Circular No.36/2016 dated 25.10.2016, it was observed that compensation received under an award which is exempted from levy of income tax u/s.96 of the RFCTLARR Act, 2013 shall not be taxable even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961. 26. At this stage, we may herein observe that the issue as to whether or not an exemption from tax, as provided in Section 96 of the RFCTLARR Act, 2013, would be available on the compensation received on the acquisition of land under enactments specified in “Fourth Schedule” was never there before the Hon’ble High Court. As the facts and issues in the case mentioned above are distinguishable as against those before us in the present appeal, the same, thus, would not carry the claim of the assesse company any further. (B) ITO, Ward-4(5), Patna Vs. Shri Suresh Prasad, ITA No.210/PAT/2018 dated 04.08.2022, ITAT-Patna 27. Once again, we find that the order of the Tribunal mentioned above being distinguishable on facts and issues involved would not assist the case of the assessee before us. Ostensibly, the Tribunal had observed that compensation received in respect of award or agreement which has been exempted from levy of income tax vide section 96 .of the RFCTLARR Act, 2013 shall not be taxable under the provisions of the Income Tax Act, 1961, even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961. Also, it was clarified that no distinction had been carved out for claiming tax exemption in Section 96 of the RFCLARR Act, 2013, in the backdrop of the nature of the land, i.e., agricultural land or non-agricultural land. 28. As the facts and issues involved in the present appeal are distinguishable compared to those involved in the case mentioned above, the same would not carry the case of the assesse company any further. (C) The ACIT Vs. SV Global Mill Ltd., ITA No.2684/CHNY/2019 dated 28.01.2021, ITAT-Chennai 29. The issue before the ITAT was whether interest on enhanced compensation was taxable or exempt u/s 96 of the RFCTLARR Act, 2013. Referring to Section 3(i) of the RFCTLARR Act, 2013, it was observed by the Tribunal that interest on enhanced compensation would qualify for exemption u/s 96 of the RFCTLARR Act, 2013. As the issue before us, i.e., as to whether or not the exemption u/s.96 of the RFCTLARR Act, 2013 is available for the compensation received on the acquisition of lands under the enactments specified in “Fourth Schedule,” was neither raised nor looked into by the Tribunal in the case mentioned above; therefore, the same being 27 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 distinguishable on facts would not further the issue involved in the case of the assesse company. (D) Shri Satish Kumar, Sangrur Vs. ITO, Chandigarh, ITA Nos. 1182 & 1183/Chd/2019 dated 31.08.2021 30. The Tribunal observed that the CBDT Circular No.36/2016 dated 25.10.2016 had clarified that the compensation received in respect of award or agreement which has been exempted from levy of income tax vide section 96 of the RFCLARR Act, 2013 shall also not be taxable under the provisions of Income Tax Act, 1961 even if there is no specific provision of exemption for such compensation in the Income Tax Act, 1961. It was further observed that the CBDT Circular No.36/2016 (supra) had also clarified that no distinction had been carved out concerning the exemption of tax in Section 96 of the RFCTLARR Act, 2013, in the backdrop of the nature of the land, i.e., agricultural land or non-agricultural land in the matter of claiming exemption from income tax. 31. At this stage, we may herein observe that the specific issue which we are seized of, i.e., as to whether under sub-section (3) of Section 105 read along with sub-section (1) of Section 105 of the RFCTLARR Act, 2013, which is confined to extending the benefits w.r,t determination of compensation in accordance with First Schedule, rehabilitation and resettlement in accordance with Second Schedule and Third Schedule in the case of a person whose lands have been acquired under the 13 enactments specified in the “Fourth Schedule,” be so read that the same vests with such person a right to claim u/s 96 of the RFCTLARR Act, 2013 exemption from income tax of the compensation so received, had not been looked into in the case mentioned above by the Tribunal. 32. As the issue involved in the present appeal before us had not been looked into by the Tribunal as observed hereinabove, the same, thus, would not support the assessee's claim. (E) Mattapalli Ram Kumar Vs. ACIT, Circle-1(1), Rajamundry, ITA No.131/Viz/2021 dated 16.03.2022 33. Relying on the CBDT Circular No.36/2016 dated 25.10.2016, it was observed by the Tribunal that income tax should not be levied on any award or agreement made (except those made under section 46) of the RFCTLARR Act, 2013. It was further observed that compensation received on compulsory land acquisition under the RFCTLARR Act, 2013, was exempted from the income tax levy. 34. Once again, as the issue involved in the present appeal before us, i.e., whether or not, as per Section 96 r.w Sec. 105(1) of the RFCTLARR Act, 2013, exemption from levy of income tax 28 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 would also be available w.r.t compensation received by an assessee on compulsory acquisition of its lands under the 13 enactments specified in the “Fourth Schedule” had not been looked into by the Tribunal in the case above, therefore, the same being distinguishable on facts would not assist the case of the assessee before us. (F) DCIT- 27(1) Vs. M/s. Ganga Developers, ITA No.2328/Mum/2021 dated 12.10.2022 35. The issue before the Tribunal was whether compensation received by the assessee under Section 11 of the Land Acquisition Act, 1894 and not an award under the RFCTLARR Act, 2013, would be eligible for tax exemption u/s. 96 of RFCTLARR Act, 2013. The Tribunal observed that as per Section 24 of RFCTLARR Act, 2013, when no award u/s.11 of the Land Acquisition Act, 1894 had been made, the provisions of the new act relating to the determination of the compensation shall apply. As the award in the case before them was made on 05.08.2016; therefore, it was observed by the Tribunal that the provisions of the new Act would apply. The Tribunal further observed that as per Section 96 of RFCTLARR Act, 2013, the compensation the assesse received on the acquisition of its land was not chargeable to income tax. 36. Once again, as the issue involved in the present appeal before us, i.e., as to whether or not, as per Section 96 of the RFCTLARR Act, 2013, exemption from levy of income tax would also be available to compensation received by an assessee on compulsory acquisition of his lands under the enactments specified in the “Fourth Schedule” had not been looked into by the Tribunal in the aforesaid case; therefore, the same being distinguishable on facts would not assist the case of the assessee before us. (G) C. Nanda Kumar Vs. Union of India, WP Nos.7874 of 2016 dated 13.03.2017 ( High Court of Andhra Pradesh) 37. Ostensibly, reference to the facts involved in the case above reveals that the petitioner's land was acquired in terms of the provisions of the RFCTLARR Act, 2013. As it was not the case where compensation was received by the assessee on compulsory acquisition of his lands under the 13 enactments relating to land acquisition specified in the “Fourth Schedule,” the same being distinguishable on facts would not support the claim of the assesse company. 38. Based on our deliberations above, we are firmly convinced that the support drawn by the Ld. AR, by referring to the aforesaid judicial pronouncements/orders, which are distinguishable on facts/issues involved, thus would not assist the case of the assessee company. 29 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 39. Apropos the reliance placed by the Pr. CIT on the order of the ITAT, Agra, in the case of Shri Jagdish Arora Vs. ITO, Ward- 1(2), Agra, ITA No.58 & 59/Agr/2019 dated 14.06.2021, we are of the considered view that the absence of notification issued by the Central Government in terms of sub-section (3) to Section 105 of the RFCTLARR Act, 2013, would though have a bearing on the application of the provisions of the Act relating to the determination of compensation in accordance with First Schedule, rehabilitation and resettlement in accordance with Second and Third Schedule, in the case of a person whose lands are acquired under the 13 enactments specified in the “Fourth Schedule”; but the same cannot be so construed that it confers any right of exemption under Section 96 of the RFCTLARR Act, 2013 to an assessee from levy of income tax on the compensation received by him on acquisition of his land under the 13 enactments specified in the “fourth schedule”. 40. We, thus, in terms of our observations above, are of the considered view that, as observed by the Pr. CIT, and rightly so, as the A.O had grossly erred in law and facts of the case in construing the provisions of the RFCTLARR Act, 2013 while framing assessment in the case of the assessee company, and had summarily accepted its aforesaid claim for exemption from tax, therefore, the same had rendered the order passed by him u/s.143(3) of the Act dated 10.10.2019 as erroneous in so far it was prejudicial to the interest of the revenue u/s.263 of the Act. Accordingly, in terms of our observations above, we uphold the well-reasoned order passed by the Pr. CIT u/s. 263 of the Act. Thus, the Ground of appeal No.1 raised by the assesse company is dismissed in terms of our observations described above.” 11. As the lands in question had been acquired by the State Government under the NHAI Act, 1956 i.e. an enactment specified in the “Fourth Schedule”, therefore, on a conjoint reading of Section 96 r.w. Section 105(1) of the RFCTLARR Act, 2013, as had been deliberated by us at length hereinabove in the case of M/s. Heritage Buildcon Pvt. Ltd. & Ors Vs. Pr. CIT (supra), the assessee could not be conferred with any right of exemption of income-tax on acquisition of her lands. Accordingly, finding 30 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 no infirmity in the view taken by the CIT(Appeals), we uphold his order. Thus, the Ground of appeal No.1 raised by the assesse is dismissed in terms of our aforesaid observations. 12. Ground of appeal No.2 being general in nature is dismissed as not pressed. 13. In the result, appeal of the assessee is dismissed in terms of our aforesaid observations. Order pronounced in open court on 26th day of December, 2024. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; दिनाांक / Dated : 26th December, 2024. ***SB, Sr. PS आदेश की प्रनिललपप अग्रेपर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The Pr. CIT, Raipur-1 (C.G) 4. ववभागीय प्रतततनधि, आयकर अपीलीय अधिकरण, रायपुर बेंच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 5. गार्ड फ़ाइल / Guard File. आिेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण, रायपुर / ITAT, Raipur. 31 Sharda Devi Kedia Vs. ITO-2(1), Bhilai ITA No. 219/RPR/2024 Date 1 Draft dictated on Sr.PS/PS 2 Draft placed before author Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order "