TaxTMI 
TaxTMI 
2023 (10) TMI 1035
X X X X Extracts X X X X
X X X X Extracts X X X X
....l gain is not liable to tax and Ld. PCIT failed to appreciate the evidence filed and the correct position of law. iii). The appellant reserves the right to add, amend or alter any of the ground/s of appeal. 3. The brief facts of the case culled out from records are that the assessee, who is an individual has filed his return of income for the AY 2017-18 on 28/02/2018 declaring the total income of Rs. 99,93,230/-. Subsequently, case of the assessee was selected for limited scrutiny through Computer Aided Scrutiny Selection (CASS). Statutory notices were issued and compliances in the form of online return submissions have been made by the assessee. A short order was passed by the Ld. AO stating that considering the submission of the assessee and income declared in the return of income filed, the return income of the assessee is found acceptable. Ld. AO's order u/s 143(3) in the assessee's case for the year under consideration was in due course of time has been examined by Ld. PCIT, thereby on the basis of certain discrepancies revealed in the order of Ld. AO, which was considered as erroneous so far as prejudicial to the interest of revenue, Ld. PCIT invoked the powers co....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 16.15/- crores in FY 2015-16 and Rs. 11.69/- crores in FY 2016-17 (AY 2017-18), were termed as sham transactions and the assessee has brought back his unaccounted income through unsecured loan. It is further observed that the amount of some of the unsecured loan creditors which was outstanding for more than 3 years, thus, the claim of assessee's has been barred by operation of Limitation Act, accordingly, an amount of Rs. 2,84,28,914/- proposed to be disallowed and added to the income of assessee u/s 41(1) as cessation of Liability. Another addition of Rs. 60.00/- Lakh u/s 68 of the I.T. Act, on account of failure on the part of the assessee to produce the bank statement reflecting such transactions with M/s Arihant Complex Pvt. Ltd. These issues, in the opinion of Ld. PCIT, were not properly verified with proper enquiries and examination of accounts by the Ld. AO while passing the Assessment Order. On perusal of the order of Ld. PCIT u/s 263, it is found that the assessee has submitted replies on 22/11/2021 & 27/12/2021, on the various aspects on which the revisionary proceedings u/s 263 were initiated by the Ld. PCIT. 5. Ld. PCIT at para 9 of the order u/s 263 has accepted t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wherein a questioner is enclosed as annexure to decide notice and question no. 18 of questioner was pertaining to the issue raised by the Ld. PCIT for invoking the provisions of revisionary proceedings u/s 263. The specific question asked under question no. 18 was "details of compensation received on compulsory acquisition of immovable properties during the year along with computation of capital gain/ loss." Ld. AR also has shown us the reply submitted towards the said question by the Ld. AO the same was furnished at page 94 of assessee's PB having reply dated 14/11/2019 and the assessee's response to query no. 18 was as under: "6. Query No. 18 (Compulsory Acquisition) Some of land jointly belonging to me and my brothers, located at Shankar Nagar Raipur, was compulsorily acquired during the year under consideration for aggregate consideration of Rs. 2,15,53,147/-. My share in such compensation was Rs. 71,75,902/-which after deduction of TDS of Rs. 7,17,590/-, got credited to my bank account. I am enclosing herewith following documents in this regard: - a) Agreement and compensation memo issued by competent authority for compulsory acquisition of abo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ular No. 36/2016 dated 25/10/2016, shall be available to the assessee. Ld. AR further contradicted the observations of Ld. PCIT that it is the onus on the assessee to establish that the compensation on acquisition of land under the RFCTLARR Act, 2013, does not fall under the enactments listed in Fourth schedule to RFCTLARR Act, 2013, which is impossible to be substantiated in absence of existence of any such information. It was the further contention of the Ld. AR that under such facts and circumstances there was no evidence on the basis of which it can be interpreted that the acquisition was made under any of the enactment mentioned in the Fourth Schedule of RFCTLARR Act, 2013. With regard to reliance of the Ld. PCIT on Office Memorandum (OM) dated 06/06/2019, it was the submission that the said office memorandum is applicable only in the cases where acquisition was made under Fourth Schedule enactments, however, in the present case assessee has explained each and every aspect to establish that the acquisition was not covered by any such enactment. It is also submitted that the OM referred to deals with acquisitions other than the acquisitions under RFCTLARR Act, 2013 and in conte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntioned in OM of CBDT dated 06/06/2019 and provisions of RFCTLARR Act. Under such circumstances when the necessary enquiries were not conducted by the AO, though the query was raised and responded by the assessee, but no further enquiries with respect to satisfaction of applicable provisions of law to allow the impugned exemption of Income tax were carried out, the exemption claimed by assessee has been abruptly allowed without any speaking observations in the assessment order, which shows that there was no application of mind by the AO, therefore, the order of Ld. PCIT is well justified and sustainable. 17. We have considered the rival contentions, perused the material available on record and case laws referred to. In the present case, the contentions of Ld. AR pertaining to allowability of exemption from Income Tax on the receipt of compensation under RFCTARR Act, which were not found acceptable by the Ld. PCIT saying that the acquisition of land was to build a railway bridge on railway crossing of Shankar Nagar, Raipur, thus, the onus is on the assessee to state with supporting documents that acquisition of land has not taken by any of the Acts mentioned in Fourth Schedule of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving a thoughtful consideration to the submissions of the Ld. AR and on perusal of various information, documents and evidence, mainly notice u/s 37(2) of RFCTLARR Act, dated 18/03/2016, award u/s 23 of RFCTLARR Act, dated 12/02/2016 and other supporting documents like Ekrar-nama, Bhugtan-patrak etc issued by Bhu-arjan-adhikari and Anuvibhagiya Adhikari, Raipur, C.G. All such information was duly furnished by the assessee and were available before the Ld. PCIT. The Ld. PCIT apart from putting the liability on the shoulder of the assessee to substantiate it otherwise, was unable to surface any cogent information/evidence to prove that the acquisition of land of the assessee is connected and acquired under any of the enactments prescribed under Fourth Schedule of the RFCTLARR Act, accordingly, the contentions raised by the Ld. AR, are found to be justifiable, having material substance, which constitutes that the acquisition of land in the case of assessee was under RFCTLARR Act, and is not covered by any of the enactments as prescribed under Fourth Schedule of the RFCTLARR Act, which is further substantiated by the department itself, when the same issue in the case of co-owner of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... computation of capital gain/ loss. Reply submitted before AO at PN 93 to 95 of PB - PN 94 & 95, capital gain was claimed exempt u/s 96 of RFCTLAAR Act, 2013. Compensation memo placed at PN 35 of PB clearly shows that acquisition was made under RFCTLAAR Act, 2013. Issue already examined by AO, not open to revision. Reliance on:- CIT vs Gabrial India Ltd. 203 ITR 108 (Bom.) Colour Publications P. Ltd. vs Pr. CIT (2018) 196 TTJ 257 (Bom.), para 17. Magic Landcon LLP & Anr. Vs Pr. CIT (2020) 204 TTJ 785 (Del.) Land acquisition made under RFCTLAAR Act, 2013 I. RFCTLARR Act, 2013 applies to road & bridge projects- i) Sec. 2(1)(b)(i) specifies the broad list of infrastructure projects which would be covered under above Statute. It refers to notification of Govt. of India. ii) Notification at PN 82 to 84, relevant item at PN 83 of PB. iii) Updated master list at PN 86 & 87 of PB. Document 2 1 5. 6. Synopses As per section 2 of RFCTLAAR Act, 2013, provisions of said Act apply when the Appropriate Government acquires land for public purpose. "Appropriate Government" means State Government where the land is situated wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctions for acquisition under Fourth Schedule enactments. Document 5 Brefe कारà¥à¤¯à¤¾à¤²à¤¯ à¤à¥‚-अरà¥à¤œà¤¨ अधिकारी à¤à¤µà¤‚ ( अनà¥à¤µà¤¿à¤à¤¾à¤—ीय अधिकारी (रा.), रायपà¥à¤° (छ.ग.) सूचना धारा 37(2) à¤à¥‚मि-अरà¥à¤œà¤¨, पà¥à¤¨à¤°à¥à¤µà¤¾à¤¸à¤¨ और पà¥à¤¨à¤°à¥à¤µà¥à¤¯à¤µà¤¸à¥à¤¥à¤¾à¤ªà¤¨ में उचित पà¥à¤°à¤¤à¤¿à¤•à¤° और पारदरà¥à¤¶à¤¿à¤¤à¤¾ का अधिकार अधिनियम 2013 पà¥à¤°à¤•à¤°à¤£ कà¥à¤°à¤®à¤¾à¤‚क 06/31-82/वरà¥à¤· 2014-15 पà¥à¤°à¤µà¤¿ दà¥à¤µà¤¾à¤°à¤¾ शà....
X X X X Extracts X X X X
X X X X Extracts X X X X
....°à¤¾à¤¶à¤¿ का विवरण निमà¥à¤¨à¤¾à¤¨à¥à¤¸à¤¾à¤° है, जो दिनांक 2416 को पà¥à¤°à¤¦à¤¾à¤¨ किया जायेगा :- कà¥à¤°à¤®à¤¾à¤‚क खसरा नमà¥à¤¬à¤° 418/3 (41/24) अरà¥à¤œà¤¿à¤¤ रकबा (वरà¥à¤—मीटर में) मà¥à¤†à¤µà¤œà¤¾ की कà¥à¤². राशि रूपये टी. डी. à¤à¤¸. कटौती उपरांत देय राशि 288.10 1.93,97.832 2.15.53.147 The à¤à¥‚-अरà¥à¤œà¤¨ अधिकारी, à¤à¤µà¤‚ अनà¥à¤µà¤¿à¤à¤¾à¤—ीय अधिकारी (रा.). ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R Act. 1. Page 5, para 4.2- Decision of ITAT Agra Bench in the case of Jagdish Arora Vs. ITO has been relied to hold that benefit u/s 96 of RFCTLARR Act cannot be extended to assessee in the absence of notification as envisaged in sec. 105(3) of RFCTLARR Act. Document 7 1. Page 6, para 4.3- CBDT circular dt. 06.06.2019 has been relled which states that the exception to Sec. 105(1) of RFCTLARR Act is Sec. 105(3). The circular clarifies that vide sec. 105(3), provisions of schedule 1, 2 and 3 of RFCTLARR Act have been made applicable to acquisition made under all enactments as enlisted in Fourth Schedule ibid. Citing above reasons, it has been observed in para? of the notice that capital gain claimed exempt under REFTLARR Act by the assessee to the tune of Rs. 71,75,902/- should have been disallowed and therefore, order passed by AO is erroneous. In this regard, the submissions of assessee are as under: 1. Acquisition in prosent case not made under any enactment listed in Fourth Schedule to REFTIARR Act 1. INCO 1. Compultory acquisition of land owned by pasORS assessee and his two brothers was made for construction o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4 The Indian Tramways Act, 1886 (11 of 1886) 5 The Land Acquisition (Mines) Act, 1885 (18 of 1885). 6 The Metro Railways (Construction of Works) Act, 1978 (33 of 1978). 7 The National Highways Act, 1956 (48 of 1956). possible not Discussed para11.4.below. in 8 The Petroleum and Minerals Pipelines (Acquisition of Right of Practically User in Land) Act, 1962 (50 of 1962). 9 The Requisitioning and Acquisition of 1952 (30 of 1952)OME TAX DEPARTMble Property Act, 10 The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948). 11 The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957). 12 The Electricity Act, 2003 (36 of 2003). 13 The Railways Act, 1989 (24 of 1989). possible not Discussed in 11.5. para below. Document 10 1. 1. As regards application of National Highways Act, 1956 The list of important provisions of above Act governing acquisition of land are summarized hereunder: - . . • • . . Clause (a) of section 3 - Under this clause, the Central Government notifies the Competent Authority to acquire land. Sec. 3A Under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ount determined under section 20F with competent authority before taking possession of land. Clause 37A of section 2- Under this clause a project is notified as special Railway project by the Central Government. In present case, above procedure has also not been followed and not a single notification/order as envisaged in above section(s) has been issued. INCOME TAX DEPARTMEN 1. In view of above submissions, it may be appreciated that: - 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. Land of assessee has not been acquired under provisions of National Highways Act, 1956; or Railways Act, 1989; or any other Act envisaged in Fourth Schedule of RFCTLARR Act; and 1. Land of assessee has actually been acquired under provisions of RFCTLARR Act, 2013 itself. 1. As regards allegation contained in Page3, last para of notice u/s 263dt. Document 12 16.08.2021 In light of explanation given vide para 11 above, kindly consider following submissions in above context: - 1. As regards copy of award - The assessee was actually not served the copy of award during entire process of acquisition. The assessee was only served with notice u/s 37(2) of RFCT....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2014, read as under- (3) The provisions of this Act 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 shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015. The amended position of sec. 105 has also been noted in CBDT circular dt. Document 14 06.06.2019, which has been relied in para 4.3 of the notice u/s 263 itself. 1. Most importantly, since the compulsory acquisition in present case was neither mado under National Highways Act, 1956, nor was under any enactment anlisted in Fourth Schedule of RFCTLARR Act, even the amended provisions I of sec. 105 have no application in the present case of assessee. The amended sec. 105 also does not deprive the assessee from the exemption given u/s 96 of RFCTLARR Act. 1. As regards decision of ITAT Agra Bench in the case of Jagdish Arora Vs. ITO 1. In light of explanation given vide para13 above, it may be appreciated that Hon'ble ITAT in above case ha....