TaxTMI 
TaxTMI 
2004 (3) TMI 336
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....to narrate the relevant facts for deciding the issue involved in this appeal in the following manner: 5. The agricultural land of the assessee and others situated at village, Dasna and Sardarpur were subjected to acquisition proceedings by the Collector/SLAO (I),Ghaziabad, during the financial year 1988-89. The relevant dates concerning these proceedings are as under: S. No. Particulars about date of issue of orders/notification Dated 1. Notification under s. 4 of Land Acquisition Act 16-8-1988 2. Declaration under s. 6 of Land Acquisition Act 3-10-1988 3. Publication of notice under s. 9(1) of Land Acquisition Act 9/10-12-1988 4. Date of taking over possession as per award order dt.7-12-1990of SLAO (Irrigation), Gzb. 14-12-1988 5. Date of award 7-12-1990 6. The assessee received the following amounts of compensation/interest and TDS during the financial year 1992-93. Date of deposit Amount deposited in the Court Compensation amount Interest Amount TDS 8-5-1992 Rs. 19,87,259.29 17,78,899.24 2,08,360.05 20,835.00 20-8-1992 Rs. 5,91,413.53 Nil 5,91,413.53 66,238.30 19-1-1993 Rs. 5,46,937.20 3,51,774.59 1,95,162.61 21,858.20 Total Rs. 31,25,61....
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....irections from Addl. CIT,Ghaziabad, under s. 144A of the IT Act. 13. In view of the directions of CIT(A) and the directions dt.18th March, 1998, issued by the Addl. CIT,Ghaziabad, under s. 144A, the AO proceeded to adjudicate various issues which were raised by the assessee during the course of assessment proceedings. His findings on the various issues are as under: (a) Notice under s. 148 was valid as the reasons were recorded on3rd April, 1996and not on22nd April, 1996and the proceedings were, therefore, initiated on the validity and legality on the same on which the reasons were recorded. The AO has made a detailed discussion on this issue and has also made reference to certain decisions in support of his finding. In addition, he has also observed that by virtue of the provisions contained under s. 292B, if any mistake or defect was there, then the same stands covered as the substance and effect of the proceedings was to be seen. The AO has also given detailed reasons in para 12 of his order. (b) According to him, the effect on various writs/petitions filed before the concerned Government authorities and the Courts was, though possession taken on 14th Dec., 1988 remained inta....
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.... Learned Departmental Representative, has argued the matter at length to challenge the view taken by the CIT(A). He has placed reliance on the various decisions. 19. Learned counsel for the assessee on the other hand, has supported the order of the CIT(A). He has also placed reliance on various decisions including the following: 1. Chowgule & Co. (Hind) (P) Ltd. vs. CIT (1990) 81 CTR (Bom) 1 : (1990) 182 ITR 189 (Bom) 2. Motilal Chaddami Lal Jain vs. CIT (1980) 17 CTR (All) 92 : (1980) 122 ITR 949 (All) 3. S. Appala Narsamma vs. CIT (1987) 63 CTR (AP) 148 : (1987) 168 ITR 17 (AP) 20. In addition to the above, learned counsel for the assessee, Shri Anand Prakash also submitted that in the case of Bharat Bhushan (HUF) the Tribunal vide order dt. 4th Nov., 2003, rendered in ITA No. 512/Del/2002 for asst. yr. 1993-94 [reported at (2004) 91 TTJ (Del) 82--Ed.] has quashed the order of the CIT(A) under s. 263 and, therefore, the order of the AO in that case upholding the claim of the assessee that receipt of interest on delayed compensation was capital receipt has become final and, therefore, in view of that final assessment order also the stand of the assessee is strengthened. 21. ....
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....r either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in s. 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. (3A) Before taking possession of any land under sub-s. (1) or sub-s. (2); the Collector shall, without prejudice to the provisions of sub-s. (3): (a) Tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in s. 31, sub-s. (2), And where the Collector is so prevented, the provisions of s. 31, sub-s. (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3B) The amount paid or deposited under sub-s. (3A), shall be taken into account for determining t....
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....f s. 6, declaration was given in the village on 10th Dec., 1988. In para 8 also, similar facts have been repeated. So far as point of possession is concerned, the answer to the question of the assessee and others on the application dt.17th Nov., 1997, given by the SLAO on24th Nov., 1997, is available at p. 222. According to it, notice under ss. 9(1) and (2) was issued on25th Nov., 1988, and the same was published in local publication on9th Dec., 1988and10th Dec., 1988. According to this reply, the possession of the land was taken over on14th Dec., 1988, and was also transferred on the same date to GDA. The District Judge,Ghaziabad, while deciding the execution cases filed by the assessee and others has also considered the dates of publication of notice and possession in his order dt.18th April, 2003. In para 3 of his order, he too has made mention of questionnaire dt. 17th Nov., 1997 and 24th Nov., 1997, and has observed that the notification was given in local publication and the notice under s. 9(1) and (2) was published on 9th Dec., 1988 and 10th Dec., 1988, in respect of village Sardarpur and Dasna and the possession of the acquired land was shown to have been obtained under s.....
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.... so. The Government can direct him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under s. 9(1). There is no material on record to show that the Government, had given to the Collector any direction under s. 17(1); nor is there any material to show that the lands in question had been taken possession of by the Collector under s. 17(1). It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on17th Oct., 1959." 29. From the above observations, it is clear that under the provisions of ss. 9 and 17, possession of land is to be taken after the expiry of 15 days from the publication of notice. In the case of Banwari Lal & Sons (P) Ltd. vs. Union of India & Ors. 1992 LAL 1 in CWP No. 2385 of 1988, the Hon'ble Delhi High Court also considered the issue relating to the compliance of s. 17(1)/17(3A) and has held that these are mandatory requirements and non-compliance of the same renders the acquisition itself bad in law. In that case also, the Collector did not offer 80 per cent of the proposed compensation under sub-s. (....
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....In the case of CIT vs. Periyar & Pareekanni Rubbers Ltd. (1973) 87 ITR 666 (Ker), the Hon'ble Kerala High Court has also brought out the distinction between the possession of land assumed under the provisions of Land Acquisition Act, 1894 and possession otherwise taken and has made the following observations regarding the nature of receipt of interest: "In the former case ss. 16 and 17 of the Act stipulate that on possession being taken, the property will vest in the Government. In the absence of any such statutory provision, when possession is assumed by the Government, whether under some provisions of law or by agreement or unauthorisedly, there is deprivation of property and interest paid by the Government is merely compensation for deprivation of property. The fact that such compensation is calculated as a percentage of interest on that amount does not affect the question. It is still compensation for deprivation of property. Where land was compulsorily acquired by Government on the basis of any agreement between the assessee and the Government on2nd Sept., 1961, and the award in the case was made on31st Aug., 1962, and interest was paid to the assessee for the period between ....
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....he facts of the present case are distinguishable from the facts of the case of Rama Bai." 35. It may also be pointed out while deciding the validity of the powers invoked under s. 263 in the case of Mahesh Chand (HUF), the Tribunal has justified the action of the AO by observing that the view taken by him was a possible view. 36. In view of the above discussion and in particular in the light of our findings recorded in para 27 of this order, regarding factual and legal position, we are of the considered opinion that findings of CIT(A) recorded in this case on the issue relating to the nature of receipt of interest are fully justified because the interest received by the assessee on delayed compensation was on account of deprivation of the possession of land. It may be pointed out that by making reference to the report of Amin of civil Court and various orders of the Hon'ble High Court and civil Court, the Department has tried to demonstrate that the physical possession was retained by the assessee and, therefore, the assessee cannot be allowed to say that the possession was taken on 14th Dec., 1988, and hence the stand of the assessee is contradictory. It may be possible that des....
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....venue has taken identical grounds. Hence, following our findings recorded while deciding ITA No. 208, we reject the grounds taken by the Revenue in these appeals. 40. In the cross-objections filed by the assessee, the following common grounds have been raised: "1. The CIT(A) has erred on facts and in law, in not permitting the assessee to lead additional evidence under r. 46A of the IT Rules, 1962, in the form of hand writing expert's opinion despite the fact that the AO had not given proper opportunity of leading the said additional evidence before him. 2. The CIT(A) has erred in holding that there was no manipulation of the date, namely,22nd April, 1996to3rd April, 1996. The reasons under s. 148(2) were originally recorded on22nd April, 1996and this date was later changed to3rd April, 1996, by overwriting and cutting. 3. The CIT(A) has erred on facts and in law, in holding that the proceedings under s. 148 were validly initiated." 41. So far as ground No. 1 is concerned, it is submitted by the learned counsel for the assessee that the CIT(A) was not justified in not permitting the assessee to lead additional evidence of handwriting expert. The assessee also filed documents t....