9911796707
TMI Blog2015 (11) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... orts (2013 (7) TMI 926 - ITAT AHMEDABAD) considered issue of similar interest levy u/s 234B wherein the assessee had defaulted in AY 2003-04 based on amendment in section 80HHC of the Act introduced by the Finance Act, 2005 with retrospective effect from 01.04.2001. It holds that default giving rise to section 234B interest is not attributable to the concerned assessee. The Revenue does not point out any exception on facts. We follow the very decision and conclude that the present assessee could not have foreseen the hon’ble apex court decision holding assessment of the enhanced compensation in the year of receipt as against that of spread over. The assessee’s arguments challenging section 234B interest succeed. The impugned interest levy u/s 234B is deleted. - Decided in favour of assessee. - ITA No.62/Ahd/2011 - - - Dated:- 30-9-2015 - SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER For The Appellants : Smt. Urvashi Shodhan, AR For The Respondent : Shri D. C. Mishra, Sr DR ORDER PER SHRI S.S. GODARA, JUDICIAL MEMBER This assessee s appeal for AY 2007-08, arises from order dated 22.10.2010 passed by the CIT(A)-XVI Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l amount as exempt from tax u/s 10(37) as claimed. But taxed interest of ₹ 22,93,378/- on receipt basis applying judgment of Hon'ble Supreme Court in case of CIT vs Ghanshyam (HUF) 315 ITR 1. Ld. CIT (A) confirmed order of AO rejecting plea of the appellant to tax on accrual basis. The appellant Form # 36before Hon'ble ITAT raised following grounds - 1. The appellant submits that in view of the decision of the Hon'ble Supreme Court in CIT V/s Ghanshyam HUF (315 ITR 1) the interest awarded ought to have been held to be not taxable at all being merely integral part of compensation to the compulsory acquisition of land. 2. The Ld. CIT (A) erred in law and on facts in confirming the addition of ₹ 22,93,378 on account of interest awarded on enhanced compensation of agricultural land. 3. The Ld. CIT (A) erred in law and on facts in confirming the addition of ₹ 22,93,378 in the year of appeal by following the decision of Apex Court in CIT Vs Ghanshyam HUF (315 ITR 1) which is not applicable to the facts of the case of the case. The CIT (A) also erred in not following the various decisions of the Supreme Court cited by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h premise we wholeheartedly agree that the appellate authority and the Tribunal would have the power to entertain any such new ground, legal contention or claim. However, it is only the Bombay High Court in the case of Commissioner of Income-tax or Pruthvi Brokers and Shareholders P. Ltd. (supra), which has traveled a little beyond this proposition and come to the conclusion that even if facts necessary to examine such a claim are not placed on before the assessing officer and, therefore, not on record, there would be no impediment in the Commissioner (Appeals) entertaining such a claim. Such an issue does not arise in these appeals. We would, therefore, reserve our opinion on this limited aspect of the matter if and when in future the question presents before us in such form. For the present, we answer Questions (3) and (4) against the Revenue and in favour of the assessees in manner described above. With respect to the appellant claiming spread over of interest by mistake, ignorance of law or inadvertence included in his income any amount that is exempt from tax then it is permissible to bring it to the notice of the authorities to grant appropriate relief. The appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are already on record. In such a case the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings. This is precisely what has happened in the present case. The Appellate Commissioner and the Tribunal did not need to nor did they travel beyond the materials already on record, in order to examine the claim of the assessees for deductions under section 80IB and 80HHC of the Act. 41. In the decisions that we have noted above, the Courts have considered such questions when a legal contention or a claim was based on material already on record but raised at an appellate stage. On such premise we wholeheartedly agree that the appellate authority and the Tribunal would have the power to entertain any such new ground, legal contention or claim. However, it is only the Bombay High Court in the case of Commissioner of Income-tax or Pruthvi Brokers and Shareholders P. L td. (supra), which has traveled a little beyond this proposition and come to the conclusion that even if facts necessary to examine such a claim are not placed on before the assessing officer and, therefore, not on record, there would be no impediment in the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004. This newly added clause envisages a situation where in the assessment for any year,-- - the capital gain arising from the transfer of a capital asset is computed by taking the compensation or consideration referred to in clause (a) of section 45(5) or, as the case may be, - enhanced compensation or consideration referred to in clause (b) of section 45(5), and subsequently such compensation or consideration is reduced by any Court, Tribunal or other authority. 5.3. During the course of hearing, ld.counsel for the assessee has drawn our attention towards page Nos.11 to 19, wherein the order of the ld.Civil Judge (S.D.) at Gandhinagar passed in Land Acquisition Reference Nos.839/98 to 841/98, 311/98 332/98 to 336/98, dated 16/02/2005 is enclosed. The ld.Court has decided the claim of enhanced compensation as under: ORDER The present Land Acquisition Reference Cases are hereby partly allowed. The opponents are directed to pay total additional ₹ 178/- per Sq.Mtr. [Rupees one hundred seventy eight only] [Rs.210/- minus ₹ 32 = ₹ 178/-] to the applicants of all the respective cases. The applicants are also entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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;] 6. In our considered view, the authorities below ought to have given a clear finding as to how this amount would become taxable if it is forming integral part of the compensation, when transfer is of the agricultural land. Since this claim was not made before the authorities below, but arising from the material available before the AO, requires fresh adjudication by the Assessing Officer. Therefore, the claim of the assessee is restored back to the file of AO for decision afresh. The AO is directed to decide the claim of the assessee in the light of judgement of Hon ble Apex Court rendered in the case of CIT vs. Ghanshyam HUF (supra). The learned co-ordinate bench treated section 234B interest levy as mere consequential in nature. The assessee s fifth ground was held to be pre-mature. 4. It is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer was of the view that regular books of accounts had not been maintained on mercantile basis. And that such a claim for assessing the impugned interest on accrual basis is accepted only in case of regular filing of returns and books being maintained on mercantile basis. He further observed that the assessee had allowed himself to avoid tax payments in respect of spread over part of interest of AY 2001-02 and earlier years; totaling to ₹ 12,24,251/-. Thereafter, he took into consideration the hon ble apex court judgment in case of Ghanshyam HUF (supra) holding that interest on enhanced compensation is liable to be taxed on receipt basis. We find from the case file that the Assessing Officer himself acknowledged that the hon ble apex court had rendered various decisions in earlier point of time in accepting this spread over plea. He would accordingly conclude that assessee s interest sum of ₹ 22,93,378/- was taxable in the year of receipt, i.e., April 2006 corresponding to the impugned AY 2007-08. He acted accordingly and added the above stated interest sum in assessee s total income of the impugned assessment year. Interest u/s 234B of the Act also stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a final, legal document and to make any claim on the basis of it as against the contents of the final document is not maintainable. 3. The Board hereby reiterates that all requests for waiver of interest are to be considered by the Chief Commissioner of Income-tax] and the Director-General of Income-tax within the parameters laid down by Board's order dated 23-5-1996 read with the order dated 30-1- 1997, 5.3 The above clarification shows that this Press Note was also regarding power of the chief. Commissioner to reduce or waive the interest and it was not for the Assessing officer to levy or not to levied interest. I have also gone through the circular, number 783 dated 18/11/1999. This circular is regarding delegation of power to the chief Commissioner for a reduction or waiver of interest. As far as AO is concerned, it is mandatory for him to charge interest under section 234B. The charging of interest is mandatory as per the decision of Hon'ble Supreme Court in the case of Anjum M.H. Ghaswala [252 ITR 01]. Hence this ground of appeal is dismissed. In view of the above, this ground of appeal is also dismissed. This leaves the assessee aggrieved. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
