TaxTMI 
TaxTMI 
2021 (6) TMI 459
X X X X Extracts X X X X
X X X X Extracts X X X X
....peals) is against the provisions of FFCTLARR Act, Addition made on this score is not called for, same is liable to be deleted. 2. That while rejecting the assessee's submissions and charging the tax under the Head 'long term capital gain', the authorities below have not considered the facts and the explanation offered before them. After taking into consideration the above, no capital gain arises on the compulsory acquisition of the above land, the capital gain charged on the compulsory acquisition of this land is not called for, the addition made on this score is liable to be deleted. 3. That the appellate order dated 28.12.2018 is bad in law. Brief Facts 1. The facts about the appeals are identical, therefore we are reproducing hereinbelow the facts of ITA No. 59/ 2019 . 2. As per the facts mentioned in the CIT(A) order in paragraph 3 it was mentioned as under: 3. In this case, assessment has been completed u/s143(3) vide the impugned order dated 31.12.2017 determining the assessed income at Rs. 69,60,900/- as against the income of Rs. 3,60,390/- disclosed in the revised return of income. The sole addition of Rs. 66,00,506/- has been made ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of income tax, 1961 even if there is no provision of exemption for such compensation under the Income Tax Act, 1961. That as per the circular issued by the CBDT compensation received to the appellant against the acquisition of the land is exempted under the become lax Act being awarded though issues of the cheques to awarded dated 27.01.15 and there is no agreement or award is executed between the authority acquiring the land prior to 27.01.15. Thus the compensation given to assessee through award on 27.01.15 which is very much under the RFCTLARR Act liable to the exempt from the Income tax. 8. Secondly it was mentioned by the AR that as per the schedule of RFCTLARR Act, NHAI is duly mentioned hence the assessee is entitle to exemption . 9. Lastly it was submitted that in the present case, as per the order of the assessing officer the acquisition of order was passed on 24.02.2014 , the copy of the acquisition award was provided to the assessing officer. AO in the order duly acknowledges the passing of the acquisition award on 24.2.2014, under NHAI Act. It was submitted that RFCTLARR Act, came into effect on 1.1.2014, therefore the assessee is entitled to the benefit of exemp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... epealedby the RFCTLARRAct therein the land acquisition in the case of assessee has been found to be under the national highway act, 1956 only. From the above discussion, it is clearly precipitated that the land acquisition in the case of assessee has been done under the specific provisions of the national highway act 1956 (1956 ka 48) and therefore, the assessee cannot be given the benefit of section 96 of the RFCTLARR Act, 2013 and the receipt from the land acquisition cannot be treated as exempt. Hence, the gains from the land acquisition are taxable as long term capital gain " The provisions of section 10(37) of the Income Tax Act, 1961 are the only provisions in the Act which can be considered for the purpose of analyzing the appellants' claim of exemption of capital gain arising from compulsory acquisition of his land. However, a mere perusal of the provisions of that section reveals that under that section such exemption is available only in respect of agricultural land and that too on fulfillment of certain conditions. It is reproduced below In the case of an assessee being an individual or a Hindu undivided family, any income chargeable under the head Cap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....during the course of hearing by both the parties.We are reproducing hereinbelow the circular issued by the board bearing No. 36/2016, which provides as under: "CBDT CIRCULAR NO- 36/2016, Dated: October 25, 2016 Subject: Taxability of the compensation received by the land owners for the land acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('RFCTLARR ACT')-reg. Under the existing provisions of the Income Tax Act 1961) an agriculture land which is not situated in specified urban area is not regarded as 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 01.04.2005 to provide specific exemption, to the capital gain arising to an individual or a HUF from compulsory acquisition of an agricultural land situated in, specified urban limit, subject to fulfillment of certain conditions. Therefore, compensations received from compulsory acquisitions of an agricultural land is not taxable under the act (subject to fulfillment of cert....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the above said that provides as under 105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.- (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 m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....central government in terms of section 105 of the Act, where by the benefit of the RFCTLARR Act 2013had been extended to the land acquired under The National Highways Act, 1956 (48 of 1956). 18. In the absence of notification the benefit under section 96 of RFCTLARR Act 2013, cannot be extended to the assessee. In our view the exemption is required to be specifically granted by the statute and it cannot be inferred or drawn. It is the duty of the assessee to make out his case unequivocally, if wanted to get the benefit of exemption that the exemption provided under section 96 of the RFCTLARR Act 2013 is applicable to the assessee.Therefore, the assessee is not liable to pay income tax for long-term capital gain. Needful has not been done by the assessee either before the lower authority or before us. 19. As mentioned by the assessing officer in the assessment order, the acquisition award under the National Highway authority act 1956 was passed on 24.2.2014, though cheques were received on 27/1/2015. In our considered opinion, the chargeability of the income is required to be determined in accordance with section 4 and 5of the Income Tax Act 1961 .In the case of ITA No.173/Agr....