Interest on Enhanced Compensation u/s 28 of Land Acquisition Act, 1894 is Exempt u/s 10(37)

ITO Vs Sh. Dhanender Kumar HUF (ITAT Chandigarh)

The issue under consideration is whether interest received u/s. 28 of the Land Acquisition Act, 1894 on compulsory acquisition of agricultural land in the nature of compensation is exempt u/s. 10(37) or chargeable to tax under head ‘Income from Other Sources’?

ITAT states that, it is true that “interest” is not compensation. It equally is true that Section 45(5) of the 1961 Act refers to compensation. The provisions of the 1894 Act which awards “interest” both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1-A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45 (5) (b) of the 1961 Act. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. It would means that converse position i.e. spread over of this interest on accrual basis is not permissible. In view of the above, respectfully following the decision of Hon’ble ITAT, Chandigarh in appellant’s own case in ITA No.551/Chd/2016, it is held that interest u/s 28 of the Land Acquisition Act received by the appellant is in the nature of compensation and is exempt under the provision of Section 10(37) of the I.T. Act. Therefore, addition made by the AO u/s 56(2) (viii) of the I.T. Act, being interest received by appellant u/s 28 of the Land Acquisition Act and forming part of enhanced compensation on acquisition of agricultural land, is ordered to be deleted. This ground of appeal is allowed.

FULL TEXT OF THE ITAT JUDGEMENT

The above appeal has been preferred by the Revenue challenging the order of the Commissioner of Income Tax (Appeals), Panchkula [(in short referred to as CIT(A)] dated 17.10.2018 relating to assessment year 2010-11, passed u/s 250(6) of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’.

2. The Revenue has raised following grounds of appeal:

‘1. Whether on the facts and in the circumstances of the case, the Ld. Income Tax Appellate Tribunal is right in law in holding that the interest received by the Assessee under section 28 of the Land Acquisition Act, 1894 during the impugned year on the compulsory acquisition of agricultural land is in the nature of compensation and exempt under section 10(37) of the Income Tax Act, 1961 and is not chargeable to tax under the head ‘Income from Other Sources’ under section 56 of the Income Tax Act, 1961?

2. Whether on the facts and in the circumstances of the case, the Ld. Income Tax Appellate Tribunal is right in law in disregarding the statutory provision of Clause(viii) under sub-section 2 of section 56 of the Income Tax Act, 1961 read with Clause( b) of section 145A according to which the interest on compensation or enhance compensation is chargeable to tax under the head Income from Other Sources’ in the year of receipt irrespective of the method of accounting employed subject to deduction of a sum equal to 50% of such income under Clause (iv) of section 57 of the Income Tax Act, 1961?

3. Whether on the facts and in the circumstances of the case the Ld. Income Tax Appellate Tribunal grossly erred in disregarding the decision of the Hon’ble Jurisdiction High Court in the case of Manjeet Singh Vs. Union of India & Others reported as [2016] 237 TAXMAN 116 (Punj&Har) and the decision in the case of Commissioner of Income Tax, Panchkula Versus Prem Singh decided 2010 wherein the decision of the Hon’ble Apex Court in the case of Commissioner of Income Tax Versus Ghanshyam Dass (HUF) reported as [2009] 315 ITR 1(SC) was considered and it was held that the interest on enhanced compensation under section 28 of the Land Acquisition Act, 1894 is chargeable to tax under section 56 of the Income Tax Act, 1961 as income of the year in which it is received irrespective of the method of deduction of a sum equal to 50% of such income under Clause (iv) of section 57 of the Income Tax Act, 1961 notwithstanding that the compensation or enhanced compensation is exempt under section 10(37) of the Income Tax Act, 1961?

3. During the course of hearing before us, it was pointed out that the solitary issue involved in the present appeal related to the issue of taxability of interest received on enhanced compensation on compulsory acquisition of land u/s 28 of the Land Acquisition Act, 1894. It was contended that the AO had held the same to be taxable u/s 56(2)(viii) read with sections 57(iv) and 145A of the Act. Referring to the facts of the case as find mention in para 6 of the CIT(A)’s order, it was pointed out that the assessee had received enhanced compensation during the year of Rs.6,98,99,901/- with Rs.1,96,55,982/- as principal component and Rs.5,02,43,999/- as interest on the compensation. That the assessee had treated the entire amount as being in the nature of compensation and exempt u/s 10(37) of the Act. It was pointed out that during assessment proceedings the AO confronted the assessee as to why the interest component be not subjected to tax, to which the assessee submitted that having been received u/s 28 of the Land Acquisition Act,1894, it was in the nature of compensation and thus eligible for exemption u/s 10(37) of the Act. The assessee relied upon the decision of the Hon’ble Apex Court in the case of CIT Vs. Ghanshyam(HUF), 315 ITR 1 (SC) in support of its above contention. The AO dismissed the contention of the assessee stating that the issue of taxability of interest on enhanced compensation was now covered by the amended provisions of sections 56(2)(viii), 57(iv) and 145A of the Act, which was applicable w.e.f. assessment year 2010-11 and according to the same 50% of the interest received was taxable. The AO relied upon the decision of the Hon’ble Jurisdictional High Court i.e. the Hon’ble Punjab & Haryana High Court in ITA No.209/2014 dated 27.10.2010. Accordingly, the AO subjected 50% of the interest received on enhanced compensation amounting to Rs.2,51,69,390/- to tax.

4. The matter was carried in appeal before the Ld.CIT(A) who found merit in the claim of the assessee. The Ld.CIT(A) referred to the decision of the Hon’ble Apex Court in the case of Ghanshyam(HUF) (supra) and relying on the same held that as per the said decision ,interest received u/s 28 of the Land Acquisition Act was part of the enhanced valued of land and in the nature of enhanced compensation only. Further the Ld.CIT(A) stated that the amendment made to the Act by introducing sections 56(2)(viii), 57(iv) and
145A(b) of the Act was for the purpose of mitigating the hardships of the assessee on account of the decision of the Hon’ble Apex Court in the case of Ramabai Vs. CIT(1990) 181 ITR 400 whereby it was held that the arrears of interest computed on the enhanced compensation was to be taxed on accrual basis. The Ld.CIT(A) derived from the same that the term interest received on compensation or enhanced compensation used u/s 145A(b),taxing the said interest in the year of receipt, was to be read in that context only and, therefore, it clearly did not refer to /apply to the interest received u/s 28 of the Land Acquisition Act, which had been held by the Hon’ble Apex Court to be in the nature of enhanced compensation in the case of Ghanshyam(HUF) (supra). The CIT(A) further noted that although the Hon’ble Jurisdictional High Court had taken a contrary view in the case of Manjit Singh, HUF and Sundar Lal & Another but the Hon’ble Supreme Court had reiterated this aforesaid proposition in the case of Union of India Vs. Hari Singh & Others subsequently. The Ld.CIT(A) further noted that identical issue had been considered in the case of the assessee by the I.T.A.T. for the impugned year, deciding the issue in favour of the assessee. Following the same the Ld.CIT(A) allowed the assessee’s appeal deleting the addition made by the AO of 50% of the interest received on enhanced compensation. The relevant findings of the Ld.CIT(A) at
paras 6.4 to 69 of the order are as under:

“6.4 I have gone through the facts of the case and written submission filed by the appellant. It is observed that the Hon’ble Supreme Court in the case of CIT v/s Ghanshyam (HUF) 315 ITR 1 has held that interest paid on the excess amount, u/s 28 of 1894 Act, depends upon a claim by the person whose land is acquired whereas interest u/s 34 is for delay in making payment. Interest u/s 28 is a part of enhanced value of land which is not the case in the matter of payment of interest u/s 34. The relevant extract from the decision of the Hon’ble Apex Court in Ghanshyam(HUF) supra is quoted as under:-

“54. Section 45(5) read as a whole [including clause (c)] not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/ consideration (including interest under Section 28 of the 1894 Act) becomes payable/paid under the 1894 Act at different stages, the receipt of such enhanced compensation/consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the court/tribunal/authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1-4-2004, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt.

55. It is important to note that compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on the date of notification under Section 4 of that Act. When the court/tribunal directs payment of enhanced compensation under Section 23(1-A), or Section 23(2) or under Section 28 of the 1894 Act it is on the basis that award of the Collector or the court, under reference, has not compensated the owner for the full value of the property as on date of notification.”

6.6 The substitution of section 145A by Finance (No.2) Act, 2009 was not in connection with the decision of the Hon’ble Supreme Court in Ghanshyam (HUF) (supra) but was brought in to mitigate the hardship caused to the assessee on account of the decision of the Supreme Court in Smt. Rama Bai v. CIT, (1990) 181 ITR 400 (SC) whereby it was held that arrears of interest computed on delayed or enhanced compensation shall be taxable on accrual basis. Therefore, when one reads the words “interest received on compensation or enhanced compensation” in section 145 A of the l.T. Act, the same have to be construed in the manner interpreted by the Hon’ble Supreme Court in Ghanshyam (HUF) (supra). Therefore, interest u/s 28 of Land Acquisition Act, 1894 is not covered by the term ‘interest’ under Section 56(2)(viii) and 145 A(b). It must be construed as compensation.

6.7 Although the Hon’ble Punjab & Haryana High Court considered this issue in the cases of Manjeet Singh (HUF) karta Manjeet Singh vs Union of India and Ors. CWP No.15506 of 2013 dated 14.01.2014 (2016) 237 taxmann 116 and Sunder Lai and Anr. Vs Union of India CWP No.2014 of 2015 vide order dated 21.09.2015 and held that interest received u/s 28 of the Land Acquisition Act is in the nature of interest and is taxable but recently the issue was once again decided by the Hon’ble Supreme Court vide its order dated 15.09.2017 in the case of Union of India vs Hari Singh and Ors. In Civil Appeal No.15041 of 2017. In this decision, the Hon’ble Supreme Court held as under :-

” While determining as to whether the compensation paid was for agricultural land or not, the AOs will keep in mind the provisions of section 28 of the Land Acquisition Act and the law laid down by this court in Commissioner of Income Tax, Faridabad v. Ghanshyam (HUF) (2009 (8) SCC 412) in order to ascertain whether the interest given under the said provisions amounts to compensation or not.”

6.8 The Jurisdictional ITAT, Chandigarh in its decision of 17.07.2018 in Som Nath Vs. ITO, ITA No.552/Chd/2016 discussing Hon’ble Punjab & Haryana High Court decisions in the case of Manjeet Singh (HUF) and the Hari singh case (supra) held that the proposition laid down by Hon’ble Apex Court in Ghanshyam HUF (supra) is the law of the land and interest received on compulsory acquisition of land u/s 28 of Land Acquisition Act is in the nature of compensation and is not taxable u/s 56 of the Act. Further the Jurisdictional ITAT in its recent common order dated 04.10.2018 in a group of cases of various appellants namely Sh. Surinder Kumar and others in ITA No.539 to 543/Chd/2016, ITA No.673/Chd/2016, ITA No.547 to 551/Chd/2016, ITA No No.368/Chd/2014, ITA No.948/Chd/2016 and ITA No.949/Chd/2016 wherein the appellant’s appeal against order u/s 154 for this A.Y. was also decided in ITA No.551/Chd/2016 has discussed the issue of taxability of interest u/s 28 received on enhanced compensation on lands compulsorily acquired by the Government as under:

“7. The core ground involved in these appeals is regarding the taxability of interest received on enhanced compensation u/s 28 of the Land Acquisition Act, 1894. Now, there are two questions involved in these appeals, first issue is regarding the year of taxability of the interest income whether it has to taxed in the year of receipt in the light of the decision of the Hon’ble Supreme Court in the case of Ghanshyam (HUF) (supra) or is to be taxed on the basis of apportionment for each year from the date of acquisition of lands till the receipt of the compensation in the light of the decision of the Hon’ble Supreme Court in the case of Rama Bai (supra); the second issue involved is as to whether the interest awarded u/s 28 of the Land Acquisition Act on enhanced compensation is to be treated as part of the enhanced compensation and will not be taxable separately as interest income under the Head ‘income from other sources’?

8. We find that both these issues are covered by the aforesaid decision of the Hon’ble Supreme Court in the case of Ghanshyam (HUF) (supra) holding the same to be in the nature of compensation itself. The Court also dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. The said findings given in the case of Ghanshyam (HUF) (supra) have been reiterated by the Hon ‘ble Supreme Court in the case of Govindbhai Mamaiya (Supra) observing as under:

“In so far as the second question is concerned, that is also covered by another judgment of this Court in Commissioner of Income Tax, Faridabad Vs. Ghanshyam (HUF) report in (2009) 8 SCC 412, 6 albeit, in favour of the Revenue. In that case, the court drew distinction between the “interest” earned under Section 28 of the Land Acquisition Act and the “interest” which is under Section 34 of the said Act. The Court clarified that whereas compensation given to the assessee of the land acquired would be income, the enhanced compensation/consideration becomes income by virtue of Section 45(5)(b) of the Income Tax Act. The question was whether it will cover “interest” and if so, what would be the year of taxability. The position in this respect is explained in paras 49 and 50 of the judgment which make the following reading:

“49. As discussed hereinabove, Section 23(1-A) provided for additional amount. It takes care of the increase in the value at the rate of 12% per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of the enhanced compensation. Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1-A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under Section 34 which depends on undue delay in making the award.

50. It is true that “interest” is not compensation. It equally is true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards “interest” both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23(1-A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45 (5) (b) of the 1961 Act. “

8. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. It would means that converse position i.e. spread over of this interest on accrual basis is not permissible. “

9. The Ld. Counsels for assessee has further brought our attention the latest decision of the Hon ‘ble Supreme Court in the case of CIT Vs. Chet Ram (HUF) dated 12.09.2017 in Civil Appeal No. 13053/2017 wherein also the Hon ‘ble Supreme Court has again reiterated the proposition laid down in the case of Ghanshyam (HUF) (supra), which we find has been further reiterated in the case of Union of India Vs. Hari Singh & others in Civil Appeal No. 1504 of 2017 dated 15.09.2017, as under:

“(2) While determining as to whether the compensation paid was for agricultural land or not, the Assessing Officer(s) will keep in mind the provisions of Section 28 of the Land Acquisition Act and the law laid down by this Court in ‘Commissioner of Income Tax, Faridabad V. Ghanshyam (HUF) ‘ [2009 (8) SCC 412] in order to ascertain whether the interest given under the said provision amounts to compensation or not. “

9.1 The said decision as rightly pointed out by the Ld. Counsel for assessee have been rendered by the Ron ‘ble Apex Court subsequent to the decision passed by the Hon ‘ble Jurisdictional High Court in the case of Manjeet Singh (HUF) (supra). Therefore, in view of the same, the proposition laid down in Ghanshyam, HUF (supra) remains and which having been laid down by the Hon’ble Apex Court is the law of the land has to be followed by all lower authorities. In view of the above, we hold that the interest received by the assessee during the impugned year on the compulsory acquisition of its land u/s 28 of the Land Acquisition Act, is in the nature of compensation and not interest which is taxable under the head income from other sources u/s 56 of the Act as held by the authorities below. The compensation being exempt u/s 10(37) of the Act is not disputed. In view of the same the order passed by the CIT(Appeals) upholding the addition by the AO on account of interest on enhanced compensation is, not sustainable. The ratio of the order laid down vide order dated 09/07/2018 in a group of cases in ITA No.1413 to 1437/CHD/2016 would apply mutatismutandis to the core issue of taxability of interest received on enhanced compensation.

10. In view of the above discussion, these appeals of the assesses are hereby allowed. “

6.9 In view of the above, respectfully following the decision of Hon’ble ITAT, Chandigarh in appellant’s own case in ITA No.551/Chd/2016, it is held that interest u/s 28 of the Land Acquisition Act received by the appellant is in the nature of compensation and is exempt under the provision of Section 10(37) of the I.T. Act. Therefore, addition of Rs.2,51,21,9597-made by the AO u/s 56(2) (viii) of the I.T. Act, being interest received by appellant u/s 28 of the Land Acquisition Act and forming part of enhanced compensation on acquisition of agricultural land, is ordered to be deleted. This ground of appeal is allowed.”

5. Before us the Ld. DR relied upon the order of the AO, though he fairly conceded that the issue stood decided in favour of the assessee by the ITAT in appeal for the impugned year, though in different proceedings ,i.e u/s 154 of the Act.

6. In view of the above ,since the issue involved in the present already stands adjudicated by the ITAT for the impugned year in favour of the assessee, though in appeal in separate proceedings, and the Revenue has not brought to our notice any new facts which were not there before the ITAT while deciding the earlier appeal,we find that for all purposes the issue already stands adjudicated by the ITAT. There arises no occasion for us to deal with the issue again considering the fact that the Ld.CIT(A) has already taken note of the decision of the ITAT and applying the same deleted the addition.

The grounds raised by the Revenue are dismissed

7. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the Open Court.