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TMI Blog2021 (6) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... e made it abundantly clear that the provisions of RFCTLARR Act2013, shall be applicable to the enactments mentioned in fourth schedule, if, the central government, within one year of passing of the Act, issues the notification in that regard mentioning therein that RFCTLARR Act 2013shall apply with such exceptions or modifications to enactment namely The National Highways Act, 1956 (48 of 1956). 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e government. 4. As the assessing officer has taxed the money received by the assessee under the long-term capital gain , feeling aggrieved by the order passed by the assessing officer, an appeal preferred by the appellant against the order passel U/s 143(3) of Income Tax Act Dt. 28.12.17 wherein the AO has made the addition towards- the income of the appellant, under the head long term capital gain which the AO has computed on the compensation received to appellant against the acquisition of fond which the appellant has taken exempt in the return of income filed being received to appellant as per RFCTLARR Act,. The AO has not considered the same as exempt as the appellant could not file any document in support of the exemption claimed by the assessee that the land is acquired under RFCTLARR Act. Accordingly the AO has taxed the amount received to appellant against the acquisition of land, under the head long term capital gain. 5. The Ld.AR for the assessee had drawn our attention, to the order passed by the CIT(A) wherein the CIT(A) whereby he had rejected the grounds of appeal raised by the assessee on three grounds namely A) The land was not a capital asset as it was situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 6.1 The facts of the case are that the appellant land was compulsorily acquired by the government under the National Highway Act, 1956 and in his return of income he had disclosed no LTCG earned thereon. During the assessment proceedings, the appellant stated that the said LTCG was exempt from taxation in view of the CBDT Circular no 36/2016 dated 25.10.2016 The AO findings on the issue are reproduced below. Para 4.1 and 4.2 4.1."In response, the assessee furnished copy of award/compensation, from perusal of the copy of award dated 24.02.2014, it is noticed that all the proceedings for land acquisition in the case of assessee have completed under the National Highway Act, 1956 and not under the RFCTLARR Act. it is also clear from the document award/compensation in the provisions of section 3A of National Highway Act, 1956 on 20.01.2010, further the effected parties were asked to submit/raise their objections/protest under the provision contained in section 3D submitted their the provisions contained in section of National Highway Act only. Further, for land acquisition certain parties/agencies has raised objections and after the disposal of the objections from the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, was being used for agricultural purposes by such Hindu undivided family or individual or a parent of his.Such transfer is by way of compulsory acquisition under any law, or a transfer the consideration for which is determined or approved by the Central Government or the Reserve Bank of India.Such income has arisen from the compensation or consideration for such transfer received by such assessee on or after the 1st day of April, 004. I find that the appellant's land acquired by the government is not an agricultural land. This fact is borne out of title documents submitted by appellant during the course of the assessment proceedings and is also confirmed from paragraph no 5 of his written submission to the AO that is dated 30.11.2017 and is reproduced below " Para 5 As required by your good self to furnish the copy of last year's original and revised income tax returns in this connection same are furnished herewith as the reason for the revision of return is concerned. In this connection it is submitted that during the year under consideration two properties of the assessee have been acquired by Government of India under compulsory acquisition on which TDS was deducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RFCTLARR Act], is exempted from the levy of Income-Tax. 3. As no distinction has been made between compensation received from compulsory acquisition of agricultural land and non-agricultural land in the matter of providing exemption from income-tax under RFCTLARR Act. the exemption provided under section 96 of the RFCTLARR Act is wider in scope than the tax-exemption provided under the existing provisions of Income-tax Act, 1961. This has created uncertainty in the matter of taxability of compensation received on compulsory acquisition of land, especially those relating to acquisition of non-agricultural land. The matter has been examined by the Board and it is hereby clarified that compensation received in respect of award or agreement which has been exempted from levy of income-tax vide section 96 of the RFCTLARR Act shall also not be taxable under the provisions of income-tax Act, 196l even if there is no specific provision of exemption for such compensation in the income-tax Act, 19621. 4 The above may be brought to the notice of all concerned." 13. From the reading of the circular, it is abundantly clear that no distinction has been made between compensation received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament. THE FOURTH SCHEDULE (See section 105) LIST OF ENACTMENTS REGULATING LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT 1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958). 2. The Atomic Energy Act, 1962 (33 of 1962). 3. The Damodar Valley Corporation Act, 1948 (14 of 1948). 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). 8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962). 9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952). 10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948). 11. The Coal Bearing Areas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2013 which is a date prior to the date when RFCTAAR Act was made applicable .Therefore, its provisions are not applicable. Further as per section 5 income of assessee (compensation received by assessee) is required to be taxed when the said compensation have accrued in favour of the assessee or deemed to have been accrued. Undisputedly, the assessee was entitled to receive the compensation when the award was passed quantifying the amount in favor the assessee for acquisition of land. Therefore, in our opinion, the cut off date for the purpose of determining its taxability is the date when the assessee was entitled to receive the compensation and not the date when it was actually received by the assessee. In the light of the above we do not find any merit in o he assessee. Accordingly, the same deserves to be dismissed" 20. Respectfully Following the decision in the matter of Shri Krishna Kumar Sharma, we are left with no other option but to dismiss the appeal of the assessee. 21. As the facts and circumstances of the ITA No. 58/2019, are identical to the ITA No. 59/2019, therefore Following our decision, in the matter of No. 59/2019, this appeal is also liable to be dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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