Income Tax Appellate Tribunal - Chandigarh
Sh. Joginder Singh, Ambala City vs Ito, Ambala on 30 July, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ "एस.एम.सी" , च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCHES, "SMC" CHANDIGARH ी एन.के.सैनी, उपा य! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT आयकर अपील सं./ ITA No. 853 /Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Bhajan Singh बनाम The ITO, Through L/H Didar Singh. Ward 3, S/o Sh. Teja Singh, VPO Ambala Saunda, Ambala City थायी लेखा सं./PAN NO: BEHPS4169A अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 854 /Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Nasib Singh बनाम The ITO, Through L/H Sh. Nirmal Singh Ward 3, S/o Sh. Niranjan Singh Ambala VPO Saunda Ambala City थायी लेखा सं./PAN NO: BMAPS1009Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 855 /Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Mohinder Kaur बनाम The ITO, Through L/H Surinder Kaur Ward 3, W/o Sh. Suchha Singh, Ambala VPO Saunda, Ambala City थायी लेखा सं./PAN NO: AZTPK1496J अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 856 /Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Tara Singh बनाम The ITO, S/o Sh. Karnail Singh, Ward 3, #21, VPO Saunda, Ambala Ambala City थायी लेखा सं./PAN NO: BZZPS5168Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 857 /Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Nirmal Singh बनाम The ITO, S/o Sh. Karnail Singh, Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: BZZPS5258K अपीलाथ /Appellant यथ /Respondent 2 आयकर अपील सं./ ITA No. 858/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Baldev Singh बनाम The ITO, S/o Sh. Thakur Singh Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: APTPS6506F अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 859/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Bachan Singh बनाम The ITO, Through L/H Swaran Singh Ward 3, S/o Sh. Lehna Singh, VPO Saunda Ambala Ambala City थायी लेखा सं./PAN NO: BMAPS2328Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 860/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Bikram Singh बनाम The ITO, S/o Sh. Karnail Singh, # 23, VPO Ward 3, Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: CAAPS4265H अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 861/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Balbir Singh बनाम The ITO, S/o Sh. Teja Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEHPS4170R अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 862/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Balbir Singh बनाम The ITO, S/o Sh. Gurdev Singh Ward 1, #6, Sector 10, Ambala City Ambala थायी लेखा सं./PAN NO: BZPS3388C अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 863/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Balbinder Singh बनाम The ITO, Through L/H Smt. Balwinder Kaur, Ward 3, S/o Sh. Chanan Singh, VPO Saunda Ambala Ambala City थायी लेखा सं./PAN NO: AXAPS2763D अपीलाथ /Appellant यथ /Respondent 3 आयकर अपील सं./ ITA No. 864/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Bhupinder Singh बनाम The ITO, S/o Sh. Gurbaksh Singh, Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: BTKPS8321J अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 865/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Banta Singh बनाम The ITO, S/o Sh. Surjan Singh, Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: AXAPS2776A अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 866/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Swaran Singh बनाम The ITO, S/o Sh. Bachan Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BMAPS2328Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 867/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Surinder Singh बनाम The ITO, S/o Sh. Chanan Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BTEPS3694E अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 868/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Shadi Singh बनाम The ITO, S/o Sh. Gurdayal Singh, Ward 3, Parshuram Nagar,Ambala City Ambala थायी लेखा सं./PAN NO: CAAPS4699R अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 869/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Santokh Singh बनाम The ITO, S/o Sh. Inder Singh,VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BZWPS3741L अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 870/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Sukhdev Singh बनाम The ITO, S/o Sh. Mehar Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEMPS3137M अपीलाथ /Appellant यथ /Respondent 4 आयकर अपील सं./ ITA No. 871/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Smt. Surinder Kaur बनाम The ITO, D/o Sh. Suchha Singh, VPO Saunda Ward 3, Ambala Ambala थायी लेखा सं./PAN NO: AZTPK1496J अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 872/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Chal Singh बनाम The ITO, S/o Sh. Inder Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BZWPS3882C अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 873/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Charanjit Singh बनाम The ITO, S/o Sh. Karnail Singh, 203, VPO Ward 3, Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: BZZPS5167B अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 874/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Charan Singh बनाम The ITO, Through L/H Sh. Surinder Singh, S/o Ward 3, Sh. Lehna Singh, # 203, VPO Saunda Ambala Ambala City थायी लेखा सं./PAN NO: BTEPS3694E अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 875/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Smt. Chatan Kaur बनाम The ITO, D/o Sh. Bachna Ram, #6, #203 Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: BDJPK5360A अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 876/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Karam Singh बनाम The ITO, S/o Sh. Maan Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: AXBPS0475R अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 877/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 5 Sh. Harbail Singh बनाम The ITO, S/o Sh. Nikka Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: AXRPS9915Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 888/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Ajmer Singh बनाम The ITO, S/o Sh. Arjun Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BZWPS3740M अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 889/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Atma Singh बनाम The ITO, S/o Sh. Mehar Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BWBPS1988K अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 890/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Gobind Ram बनाम The ITO, S/o Sh. Basanta Ram, VPO Jandli Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: AGXPR3607D अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 891/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Pritam Singh बनाम The ITO, S/o Sh. Naurang Ram, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEOPS3609L अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 892/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Gurmail Singh बनाम The ITO, S/o Sh. Mehar Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BYYPS5272F अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 893/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 6 Sh. Gurmail Singh बनाम The ITO, S/o Sh. Teja Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEHPS4198M अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 894/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Gurcharan Singh बनाम The ITO, S/o Sh. Mehar Singh, Through L/H Ward 3, Sh. Jaswinder Singh And Sh. Ambala Harvinder Singh, VPO Saunda, Ambala City थायी लेखा सं./PAN NO: BUQPS4250M अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 895/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Smt. Gurdev Kaur बनाम The ITO, D/o Sh. Mehar Singh, VPO Mohra Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: AQNPK1038P अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 896/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Smt. Gurdyal Kaur बनाम The ITO, D/o Sh. Kehar Singh, #22, VPO Ward 3, Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: BOWPK7622F अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 897/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Ganda Singh बनाम The ITO, L/H Bhupinder Singh, S/o Sh. Surjan Ward 3, Singh, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: AXAPS2777B अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 898/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Ram Sarup बनाम The ITO, S/o Sh. Basanta Ram through L/H Ward 3, Ramji Lal, VPO Jandli Ambala Ambala City थायी लेखा सं./PAN NO: AXWPS5056M अपीलाथ /Appellant यथ /Respondent 7 आयकर अपील सं./ ITA No. 899/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Ram Singh बनाम The ITO, S/o Sh. Maan Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: AWYPS8234J अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 900/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Rameshwar Dass बनाम The ITO, S/o Sh. Daya Ram, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: ANWPD7743E अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 901/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Prem Singh बनाम The ITO, S/o Sh. Teja Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEHPS4171Q अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 902/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Pal Singh बनाम The ITO, S/o Sh. Gurdayal Singh, Parshuram Ward 1, Nagar, Ambala City Ambala थायी लेखा सं./PAN NO: CAEPS2913L अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 903/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Parvimder Kumar बनाम The ITO, S/o Sh. Ram Kishan, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEMPS3137M अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 904/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Smt. Mukhtyar Kaur बनाम The ITO, D/o Sh. Ajaib Singh through L/H Sh. Ward 3, Jaswant Singh, # 117, VPO Banondi Ambala Ambala थायी लेखा सं./PAN NO: AZHPK8196P अपीलाथ /Appellant यथ /Respondent 8 आयकर अपील सं./ ITA No. 905/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Mihan Singh बनाम The ITO, S/o Sh. Gurdayal Singh, Parshuram Ward 1, Nagar, Ambala City Ambala थायी लेखा सं./PAN NO: BZZPS5246R अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 906/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Mohinder Singh बनाम The ITO, S/o Sh. Teja Singh, VPO Saunda Ward 3, Ambala City Ambala थायी लेखा सं./PAN NO: BEHPS4197E अपीलाथ /Appellant यथ /Respondent आयकर अपील सं./ ITA No. 907/Chd/ 2011 नधा रण वष / Assessment Years : 2007-08 Sh. Joginder Singh बनाम The ITO, S/o Sh. Niranjan Singh Ward 3, VPO Saunda, Ambala City Ambala थायी लेखा सं./PAN NO: AZXPS2517E अपीलाथ /Appellant यथ /Respondent नधा रती क! ओर से/Assessee by : Shri. Ashwani Kumar, CA राज व क! ओर से/ Revenue by : Smt. Chandrakanta, Sr. DR सन ु वाई क! तार&ख/Date of Hearing : 18/07/2019 उदघोषणा क! तार&ख/Date of Pronouncement : 30/07/2019 आदे श/Order PER N.K. SAINI, VICE PRESIDENT These appeals by different assessees are directed against the common order dt.01/07/2011 of Ld. CIT(A), Panchkula for the Assessment Year 2007-08.
2. Since the issue involved is common in all these appeals which were heard together, so these are being disposed off by this consolidated order for the sake of convenience and brevity.
3. At the first instance I will deal with the appeal in ITA No. 888/Chd/2011 in the case of Sh. Ajmer Singh Vs. ITO, Ward-3,Ambala wherein the following grounds have been raised:
91. That order passed u/s 250(6) of the Income Tax Act, 1961 by the Ld. Commissioner of Income Tax (Appeals), Panchkula is against law and facts on the file in as much she was not justified to arbitrarily hold that action of the Ld. Assessing Officer in holding that rectification is not possible is justified.
2. That she gravely erred in holding that as the issue of taxability of interest on compensation has travelled up to Hon'ble Supreme Court, the issue is debatable and thus, does not fall within the ambit of rectification u/s 154.
From the aforesaid ground it would be clear that only grievance of the assessee relates to the rejection of application for rectification under section 154 of the Income Tax Act, 1961 (hereinafter referred to as 'Act'),filed by the Assessee before the A.O.
4. Facts of the case in brief are that the assessee filed his return of income on 31/03/2008 declaring total income of Rs. 3,13,760/- after claiming exemption of Rs. 35,85,830/-under section 10(37) of the Act in respect of enhanced land compensation. The assessee also claimed credit for TDS amounting to Rs. 4,37,534/- corresponding to the interest income declared in the return and the enhanced compensation. The said return of income was processed under section 143(1) of the Act and the refund was also issued accordingly. Thereafter the assessee filed application under section 154 of the Act seeking rectification on the ground that he had declared only part of interest income received alongwith enhanced land compensation treating the same to be taxable in the year under consideration and the claim for TDS was also made accordingly. It was further submitted that as per the judgment of the Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam (HUF), 315 ITR 1, the entire interest was to be assessed in the year of its receipt and since this interest was exempt under section 10(37) in the assessee's case being part of enhanced compensation, therefore his entire interest income should have been treated to have been declared in the instant assessment year and since it was exempt, the entire TDS may be refunded alongwith the interest.
5. The A.O. after considering the application of the assessee moved under section 154 of the Act observed that as on date the returned income stands to be the assessed income so there was no mistake apparent from the record warranting rectification thereof and that the assessee intended his case to be decided as per the particulars which were not shown in the return of income. He further observed that although after respectfully consideration of the judgment of the Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam (HUF)(supra), the assessee's entire income was assessable in the year of its receipt but the 10 rectification was not a proper process in this case because the assessee neither claimed the relevant relief in his original return nor any return had been revised to this effect as per the relevant provision of the law. Accordingly the rectification application moved by the assessee was rejected.
6. Being aggrieved the assessee carried the matter to the Ld. CIT(A)and furnished the written submission which had been incorporated in para 3 of the impugned order and read as under:
"The present appeal has been filed against order dated 10-01-2011 passed u/s 154 by the Ld. Income Tax Officer, Ward-3, Ambala. The appellant has raised the following grounds of appeal vide the memorandum of appeal:-
"i) The order passed u/s 154 by the Ld. Assessing Officer is against the law and facts on the file in as much as he was not justified to hold that in the instant case rectification is not the proper process.
ii) That all facts relating to the nature of receipts and TDS were on record which the Ld. Assessing Officer failed to appreciate before adjudicating application u/s 154".
Facts in brief are that the appellant is an individual and return for A.Y. 2007-08 was filed on 24-011-2008 declaring income at Rs.3,42,735/-. During the year in appeal, the appellant had received enhanced compensation alongwith interest amounting to Rs.86,17,840/-. The appellant is primarily an agriculturist and was having agricultural land in village Saunda, Distt. Ambala. The land was acquired by the Land Acquisition Officer and as already submitted above, the appellant received enhanced compensation and interest aggregating to Rs.86,17,840/- which, in fact comprised of enhanced compensation of Rs.38,97,140/- and interest of Rs.47,20,700/-. While filing the return, the appellant declared gross total income of Rs 42,39,875/- (Copy of computation chart of income enclosed) on which the appellant claimed exemption u/s 10(37) to the tune of Rs.38,97,140/- being the amount of enhanced compensation. The balance amount of Rs.3,42,735/-, received as interest on the enhanced compensation relevant for A:Y: 2007-08 was declared as taxable income. The appellant had bifurcated the interest on yearly basis as per the Judgment of the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Hardwari Lal, Reported in 219 CTR, p.583.
As per the Judgment of the Hon'ble Supreme Court delivered on 16-07-2009 in the case of CIT Vs. Ghanshyam Dass, reported in 315 ITR, p.1, the entire interest received by the assessee is to be taxed in the year of receipt. Their Lordships of the Hon'ble Supreme Court further held that interest received u/s 28 of the Land Acquisition Act has to be treated as a part of the enhanced compensation and interest received u/s 34 of the Land Acquisition Act has to be treated as interest. In the appellant's case, the entire interest received was u/s 28 of the Land Acquisition Act and thus, the treatment to interest was to be the same as was to be given to the amount of enhanced compensation. Following the ratio of above said Judgment, the entire amount of interest received during the year was to be accounted for during the relevant year i.e. A:Y: 2007-08 and as the same was interest u/s 28 of the Land Acquisition Act, the same was to be treated as exempt, u/s 10(37).
The appellant, while filing the return, as already submitted above had declared only the interest relevant for this year but in view of the ratio of the Supreme Court Judgment mentioned supra, the appellant vide application made u/s 154 prayed that the entire amount of interest should be included in the relevant assessment year and the treatment of the amount of the interest be given as observed by Their Lordships of the Hon'ble Supreme Court. TDS Certificate showing the entire amount of interest was a part of the record. The Ld. Assessing Officer has rejected application filed u/s 154 on the ground that the rectification 11 is not a proper process in this case because the assessee has neither claimed the relevant relief in the original return, nor any return has been revised to this effect as per the relevant provisions of the law.
It is respectfully submitted that the assessee had filed the return on 24-01-08 and in any case, as the return was late and not filed within the due time as prescribed u/s 139(1), the return could not have been revised and otherwise also, the Judgment of Their Lordships of the Supreme Court is dated 16-07-09 and even if the return for A:Y: 2007-08 had been filed within time, the last date for revision of the return was 31-03-09 and as the Judgment mentioned supra was delivered after 31-03-09, the revision would not have been possible.
Secondly, as regards the Ld. Assessing Officer's case that the assessee has not claimed the relevant relief in the original return, it has been amply explained that the return had been filed keeping in view the ratio of Judgment of the Hon'ble Punjab & Haryana High Court in the case of Hardwari Lal mentioned supra and it is only as a result of Judgment of the Hon'ble Supreme Court that the entire interest is to be declared in the year of receipt. The assessee applied to the Ld. Assessing Officer for inclusion of the entire interest in the year of receipt i.e. A:Y:
2007-08 and as the interest had been received u/s 28 of the Land Acquisition Act, the same was to be treated as part of the enhanced compensation which was exempt u/s 10(37). In any case, the TDS Certificate reflecting the total amount of interest was a part of the assessment record.
The appellant relied upon the following judgments :-
i) CIT Vs. Mahalakshmi Textile Mills L td, reported in 66 ITR 710 (SC)
ii) ACIT Vs. Saurashtra Kutch Stock Exchange L tel. 305ITR 227(SC) It may not be out of place to mention that in cases where the Ld. Assessing Officer framed assessment u/s 143(3) had treated the entire amount of interest as taxable during A:Y: 2007-08 on the ground that the entire interest received during the year was in his opinion taxable in the year of receipt. The Ld. Assessing Officer, while framing those assessments referred to the Judgment of the Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam Dass referred to supra. At that point of time, the assessee submitted that the ratio of that Judgment is not related to the case of the assessee and the Ld. Assessing Officer relying on the said Judgment taxed the entire amount of interest and also gave credit for the whole amount of TDS on the basis of TDS Certificate enclosed with the return. In those cases, the Ld. CIT(A) relying on the Judgment of the Hon'ble Supreme Court held that no doubt the entire interest is to be treated as income of the year in which the same has been received, but as the interest received was u/s 28 of the Land Acquisition Act, the same was to be treated as a part of the enhanced compensation which was exempt u/s 10(37).
The Department went in appeal against order of the Ld. CIT(A) and the Hon'ble Chandigarh Bench dismissed the department's appeal. While giving effect to the order of the Ld. CIT(A) in those cases, the Ld. Assessing Officer deleted the addition made on account of interest, but restricted the claim of TDS to the amount claimed by the assessees in their original returns. The assessee went in appeal against the order giving appeal effect before Your Honour's predecessor and Your Honour's predecessor vide order dated 31/03/2011 has held that credit has to be allowed for the full amount of TDS.
It is respectfully prayed that as all facts relating to the receipt of interest and the deduction of TDS were on record and as per the Judgment of the Hon'ble Supreme Court in the case of Ghanshyam Dass referred to supra, the mistake is apparent from record and the Ld. Assessing Officer may kindly be directed to give credit for the entire amount of TDS during A. Y 2007-08 and the appeal be kindly adjudicated accordingly."
7. The Ld.CIT(A) after considering the submissions of the assessee observed that in order to rectify the mistake under section 154 of the Act the mistake has 12 to be apparent from the record and the jurisdiction for rectification was not available where the matter to be rectified was debatable. According to her the entire interest receipt by the assessee alongwith enhanced land compensation was taxable in the year of receipt or to the extent relatable to which it pertained, was undoubtedly a debatable issue and the debate over the issue had lead the matter to the Hon'ble Supreme Court. The Ld.CIT(A) also observed that sheer fact that the issue of taxability of interest on compensation had traveled up to the Supreme Court shows that the issue was debatable. Accordingly it was held that a decision on a debatable point of law was not a mistake apparent on the record. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of T.S. Balram Vs. Volkart Brothers reported at 82 ITR 50.
8. Now the assessee is in appeal.
9. Ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the assessee earlier disclosed the interest on the enhanced compensation which pertained to the year under consideration and also claimed refund of the TDS relatable to the said income. However the issue relating to the taxability of the interest on the compensation was settled by Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam (HUF) reported at 315 ITR 1 wherein it was held that entire interest was taxable in the year of receipt and since the return filed by the assessee was belated so it could not be revised therefore the only way left with the assessee was to file an application under section 154 of the Act because after the judgment of Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam (HUF) (supra) the interest and the compensation was to be taxed in the year of receipt, so it was a mistake rectifiable under section 154 of the Act. It was also stated that earlier the interest received under section 28 of the Land Acquisition Act was exempt from income and only interest under section 34 of the Land Acquisition Act was taxable. It was further submitted that the Ld.CIT(A) wrongly held that the issue of taxability of interest was a debatable issue, on the contrary this issue was settled by the Hon'ble Apex Court, so it was law of land and the issue did not remain debatable after the judgment of the Hon'ble Apex court. The reliance was placed on the following case laws:
• CIT Vs. Ghanshyam (HUF) [2009] 315 ITR 1 (SC) • CIT Vs. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 (SC) • CIT Vs. Govindbhai Mamaiya [2014] 367 ITR 498 (SC) 13 • ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC) • CIT Vs. Chet Ram (HUF) [2018] 400 ITR 23 • Shri Surinder Kumar & Another Vs. DCIT in ITA No. 539/Chd/2016 (Chd. Trib) dt. 04/10/2018 It was further submitted that any decision of the Jurisdictional High Court rendered even on the basis of the subsequent order of the Jurisdictional High Court passed after the order of the Revenue Authority, it could be said that the mistake was apparent from the record. Reliance was placed on the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Aruna Luthra (2001) 252 ITR 76. However it was admitted that the said decision was not cited either before the A.O. or the Ld. CIT(A).
10. In her rival submission the Ld. Sr. DR strongly supported the orders of the authorities below and reiterated the observations made by the A.O. and the Ld. CIT(A) in their respective orders.
10.1 It was further stated that the assessee neither disclosed the entire interest in the original return of income nor revised the return of income, therefore the claim of the assessee was not acceptable and since there was no mistake apparent from the record, the rectification application moved by the assessee under section 154 of the Act was not maintainable as such the A.O. rightly rejected the application of the assessee and the Ld. CIT(A) was fully justified in confirming the view taken by the A.O. 10.2 Ld. Sr. DR also furnished the written submissions which read as under :
1. The main relief claimed by the assesee before the AO by way of application u/s 154 is refund of TDS amount on part of the interest on enhanced land compensation. It is important to note that the credit of the impugned TDS and consequently refund was not claimed in the ROI filed u/ s 139(1). Also no revised return was furnished to claim the additional refund. This fact is mentioned in para 4 of the assessment order. The claim of additional refund is made by way of application u/s 154.
2. It is submitted that the IT Act has laid down certain conditions and time framet to claim refund. Section 237 of the Act provides for claim of refund of excess amount of tax paid by the assessee or on his behalf for any assessment year. The form of claim for refund are prescribed by section 239 (1) of the Act.
Limitations for form of refund are prescribed by section 239(2) of the act as per which no claim of refund shall be allowed after one year from the last day of the assessment year. In the present case the time limit to claim refund was 31/3/2009. However no claim was made by the assessee before the due date. This limitation cannot be side stopped by invoking section 154.
3. It is also submitted that u/s 119 (2) (b) the Board has the power to condone the delay in claiming refund in cases of genuine hardship and this power of Board cannot be usurped by Hon'ble ITAT in the name of rectification of mistake apparent from record.
144. In view of the above submissions it is prayed that the appeal of the assesee may kindly be dismissed.
11. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case it is an admitted fact that the assessee had shown the interest on the enhanced compensation which was related / relevant for the year under consideration and also claimed the refund on the basis of the TDS which was relatable to the said year. However the issue related to the taxability of the interest was settled by the Hon'ble Supreme Court in the case of CIT Vs. Ghanshyam (HUF)(supra) wherein it was held as under:
"Thus, interest is different from compensation. However, interest paid on the excess amount under section 28 depends upon a claim by the person whose land is acquired, whereas interest under section 34 is for delay in making payment. Interest under section 28 is part of the amount of compensation whereas interest under section 34 is only for delay in making payment after the compensation amount is determined. Interest under section 28 is a part of enhanced value of the land, which is not the case in the matter of payment of interest under section 34. [Para 24] It is clear from reading of sections 23(1 A), 23(2) as also section 28 of the 1894 Act that additional benefits are available on the market value of the acquired land under section 23(1 A) and 23(2) whereas section 28 is available in respect of the entire compensation.
Thus, interest awardable under section 28 would include within its ambit both, the market value and the statutory solatium. It would , thus, be evident that even the provisions of section 28 authorise the grant of interest on solatium as well. Thus, solatium means an integral part of compensation and; interest would be payable on it. Section 34 postulates award of interest at 9 per cent per annum from the date of taking possession only until it is paid or deposited. It is a mandatory provision. Basically, section 34 provides for payment of interest for delayed payment. [Para 25]"
It has further been held as under :
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). This is the scheme of section 45(5) and section 155(16). Even before the insertion of section 45(5)(c ) and section 155(16) with effect from 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. The compensation, including enhanced compensation/consideration under the 1894 Act, is based on the full value of property as on 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. [Para 35] 15 11.1 Similar view has been taken by the Hon'ble Apex Court in the case of CIT Vs. Govind Bhai (2014) 367 ITR 498 (supra) wherein it has been held as under :
" (ii) That the interest received under section 28 of the Land Acquisition Act, 1894, on the enhanced income was to be taxed in the year in which such interest on the enhanced compensation was received and was not to be spread over the period in question."
11.2 Similarly the Hon'ble Apex Court in the case of CIT Vs. Chet Ram (HUF) [2018]400 ITR 23 (Supra) held as under:
" that the assessees who had received some amount of enhanced compensation as also interest thereon under an interim order passed by the High Court in pending appeals relating to land acquisition were liable to be assessed to income-tax in the year in which it was received."
12. In the present case the issue related to the taxability of interest on the enhanced compensation did not remain debatable after the order of the Hon'ble Apex Court in the case of CIT Vs. Ghanshyam (HUF)(supra)wherein the issue was settled and it was held that the entire interest on the compensation received was to be taxed in the year of receipt.
13. In the instant case the Ld. Counsel for the Assessee pointed out that the return filed by the assessee was belated therefore revised return could not be filed and the only way to claim the refund of TDS was to file the rectification application under section 154 of the Act. Hon'ble Jurisdictional High Court in the case of CIT Vs. Aruna Luthra (supra) held that the power under section 154 can be invoked even when the issue is decided by the Jurisdictional High Court or Superior Court, after the order has been passed and that the proceedings for rectification of an order can be initiated on the basis of an order passed by the Hon'ble Jurisdictional High Court or the Hon'ble Supreme Court subsequent to the order passed by the authority under the Act. Now the question arise as to whether the A.O. was required to rectify the order passed by him under section 143(1) of the Act or not. On a similar issue the Hon'ble Jurisdictional High Court in the case of CIT Vs. Smt. Aruna Luthra (2001) 252 ITR 76 (supra) held as under:
"The power given to the authority under section 154 of the Income-tax Act, 1961, is very wide. It can correct "any mistake" provided it is "apparent from the record".
Section 154 does not provide that the error has to be seen in the order with reference to the date on which it was passed. The mistake has to be on the record of the case. The record would include everything on the case file. The return, the evidence and the order are a part of the record. Thus, even in the case of an assessment under section 143(1), it cannot be assumed that there can be no error apparent from the record. Section 154 has been enacted to enable the authority to rectify the mistake. The legislative intent is not to allow it to 16 continue. This purpose has to be promoted. The Legislature's will has to be carried out. By placing a narrow construction, the object of the legislation would be defeated. Parliament has prescribed a period of four years for correction of the mistake. While an assessment under section 143 or 144 has to be normally made within a period of one or two years, the mistake can be rectified at any time during the period of four years. The obvious intention of the Legislature is that if the mistake has come to the notice of the authority within the prescribed time, it should not be allowed to continue. Section 154 clearly provides for the intervention of the authority within the specified time, subject to the condition that the mistake is apparent and the issue is not debatable. Thus, any right under an order is subject to the provision of the statute. That being so there is no vested right which can be said to have been taken away. The provision has inbuilt safeguards. It provides for the issue of notice. It ensures the grant of an opportunity to be heard. It limits the jurisdiction of the authority. The action can benefit the assessee as well as the Revenue. In this situation, there is no ground for placing an unduly restricted interpretation on the provision. The power under section 154 can be invoked even when an issue is decided by the jurisdictional High Court or a superior court after the order had been passed."
13.1 Similar view has been taken by the Hon'ble Apex Court in the case of Asst. CIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227(SC) wherein their lordship held in para 41 & 42 as under :
"41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Ltd. v. Commissioner of Surtax [1999] 237 ITR 834. It was held by the Division Bench of the High Court that if the point is covered by a decision of the jurisdictional court rendered prior or even subsequent to the order of rectification, it could be said to be a "mistake apparent from the record" under section 254(2) of the Act and could be corrected by the Tribunal.
42. In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to maintain and expound the "old one". In other words, judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood."
14. In the present case it is an admitted fact that the order of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Smt. Aruna Luthra(supra) was not brought to the notice of the A.O. as well as the Ld. CIT(A) as has been admitted by the Ld. Counsel for the Assessee at BAR. I, therefore, deem it appropriate to set aside this issue back to the file of the A.O. to be adjudicated afresh in accordance with law and also keeping in view the ratio laid down by the Hon'ble Jurisdictional High Court in the aforesaid referred to case.
15. The facts in all other cases are similar to the facts involve in ITA No. 888/Chd/2011 in the case of Sh. Ajmer Singh Vs. ITO, Ward-3,Ambala, which I have adjudicated in former part of this order, therefore the findings given therein shall apply mutatis mutandis for all the cases under consideration.
1716. In the result, all the above appeals of the assessee's are allowed for statistical purposes.
(Order pronounced in the open Court on 30/07/2019 ) Sd/-
एन.के.सैनी, ( N.K. SAINI) उपा य! / VICE PRESIDENT AG Date: 30/07/2019 आदे श क! त,ल-प अ.े-षत/ Copy of the order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. आयकर आय/ ु त/ CIT
4. आयकर आय/ ु त (अपील)/ The CIT(A)
5. -वभागीय त न4ध, आयकर अपील&य आ4धकरण, च7डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File