TMI Blog2015 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. Barani land is a type of agricultural land which is clearly evident from Revenue regulations and record placed on the paper book. The objection raised by the AO and ld. CIT(A) about Girdawari is irrelevant and no-consequential.Tehsildar appointed by JDA cannot be denied to be a Revenue Officer inasmuch as he works as a Revenue Officer in terms of JDA Act. The language of Section 194LA being plain and simple it provides no physical verification of land by LAO about carrying on of agricultural operations. In the framework of sec. 194LA, there is no need of applying rules of interpretation and imposing further condition to go beyond the scope of obligation as prescribed under the Act In view thereof, we hold that the assessee has been able to demonstrate from the record that impugned agricultural land acquired by the assessee are agricultural land on per records and in terms of Section 194LA, Explanation (i). There is no obligation to deduct any TDS thereon. - Decided in favour of assessee. - ITA No. 134 to 136/JP/2015 - - - Dated:- 29-5-2015 - R. P. Tolani, JM And T. R. Meena, AM,JJ. For the Appellants : Shri Shyam Lal Agarwal Shri Tarun Agarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19-08-2013 as under:- 3. As discussed with your goodself, we again submit that no TDS is applicable in case of agriculture land acquisition as defined in section 194LA itself. Your goodself asked that the agriculture lands within the limits of urban area would be covered since these lands are not agriculture lands u/s 2(14) (iii)(a) of the I.T. Act . 4. That we submit the reply before your goodself that for the purpose of Section 194LA the lands covered u/s 2(14) (iii)(a) and (b) are also exempt and the same has been mentioned in the explanation to Section 194LA as cited below:- Explanation- For the purpose of this section:- (i) Agriculture land' means agricultural land I India including land situate in any area referred to in items (a) and (b) of sub-clause (iii) of clause (14) of Section 2; In view of the above, it is very clear that the agriculture land anywhere even in the urban area is covered 5. In this respect, we further submit that the issue was discussed at length with the Department in the year 2009 at all the appropriate levels and it was clearly concluded that the same is not covered in the ambit of TDS. It was also well discussed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certificate from Tehsildar that was produced by the assessee was of a person who is an employee of the assessee. He is only designated as a Tehsildar for a particular zone and it not the same as Tehsildar appointed by the State Govt.. Now for the internal procedure being followed by the assessee of having all necessary evidence before compensation is made. It appears that evidence in possession of the assessee were only the above said two documents, i.e. the certificate of their Tehsildar and affidavit of the deductee. The Jamabandi was submitted by the assessee to the Department after a period of more than three months. Further, a Jamabandi is only a statement of ownership of a particular land. All land, whether barren, undulating or cultivable is classified as agricultural in a Jamabandi. The Jamabandi report does not give any details as to the actual use of land. A Girdawari report on the other hand gives details of land acquisition. During the course of verification, the assessee was not found in possessin of any Girdawari Report. The assessee has till date not furnished any Girdawari Report for the land claimed to be agricultural land to the Department. In view of above and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201(1) 201(1A) Total 2011-12 14073886 3578382 17652268 2012-13 22548366 3859487 26407853 2013-14 (upto 6- 08-2014) 4829182 452975 5282157 Total 49342278 2.4 Aggrieved, the assessee preferred first appeal where detailed submissions were made along with reference to various case laws. However they didn't find the favor with ld. CIT(A) who confirmed the order of the AO by following observations. 6.5 I have carefully considered the findings of the AO as also the submission of the appellant. It may be noted that the JDA has acquired various lands for its development plans on which compensation has been paid. The appellant case is that the land so acquired were all agricultural land and that the TDS was not to be deducted as per provisions of Section 194A of IT Act. In support of such submission the appellant has furnished 'Jamabandi' reports of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd but actual use of the land was not ascertained from the Jurisdictional Tehsildar's / Revenue authorities. It may also be noted that as per provisions of Section 194A compensation made against any immovable property other than the agricultural land is to be covered for deduction of tax but what constitutes the agricultural land is not defined in the Act. It is also correct that the definition of the agricultural land as provided in Section 2(14)(iii) is for the capital gain provisions. In this background the decision of Hon'ble Kolkata High Court in the case of Tea Estates India (P) Ltd. vs. CIT, 59 ITR 482 (WT) though in respect of Wealth Tax proceedings can be a guiding factor as to what constitute the agricultural land and as per the decision of the Hon'ble Court the land which is actually connected with the cultivation should only be considered as a agricultural land. The fact that such lands were barren or otherwise only be considered as a agricultural land. The fact that such lands were barren or otherwise not of cultivatable nature is even not disputed by the appellant. It is also fact that the appellant has relied on the 'Jamabandi' reports and did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been done but these operations were not done because of the land was to be acquired by the Railways. In the appellant case, it is not the case that the land was not being cultivated as it was to be acquired by the JDA and the fact was that the land was not of cultivatable nature. Moreover the finding of the Hon'ble Supreme Court as to what constitute the agricultural land cannot be altered or supersede by the findings of the Hon'ble ITAT. There is nothing on record which may indicate that the findings of Hon'ble Supreme Court has subsequently been modified or overruled by any other larger Bench of the Court. It may also be mentioned that provisions of TDS are introduced in the statute to ensure recover of tax on the taxable receipts/ income i.e. where the income is otherwise taxable. During the appellate proceedings, it was enquired from the ld A.R. of the appellant whether the land on which such compensation was paid situated in 8 K.M. of Municipal Limits for levy of capital gain and it was admitted by the ld. AR that such land were situated within 8 KM Municipal Limits. These facts indicate that payments against acquisition of such land was otherwise also o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assigned in Explanation (i), no TDS is deductible on such compensation. Section 194LA does not cast any obligation on the assessee to physically verify whether the agriculture operations ARE carried on the land to be acquired. The above legal provision contemplate that there is no obligation for deducting TDS if the acquired land is agricultural land situate in the specified area. Ld. ACIT during the course of hearing prescribed the format and documents to hold the land to be covered under Explanation (i) of the Section 194LA of the Act, it has been duly complied with by JDA. Thus requisite record which in the eyes of the AO was sufficient to hold the agriculture land as covered in under Explanation (i) was squarely complied with by the assessee. It is trite law that the language of any taxing provision being plain and unambiguous, there is no use of further interpretation or reading some more conditions in the provisions. The letter issued by the AO is placed at page 5 of the Paper Book Volume 1 indicate that For safety, both certificate from Tehsildar and affidavit from payee regarding present use may be obtained. After verifying JDA's compliance, ld. ACIT took U turn and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a decisive factor when the land itself was agricultural land though may not be used for agricultural purposes but unless and until the same was used for nonagricultural purposes it could not be said that the land could not be treated as agricultural land for the purposes of section 194LA. Even otherwise these questions were relevant only for deciding the taxability of income in the hands of the owners of the land. (v) Further reliance is placed in the case of Special Land Acquisition Officer vs. ITO, TDS -4 (ITAT Ahemdabad Bench 'A' (2010) 42 to SOT 9 wherein it was held by the ITAT that From the discussion made by both the parties and careful study of the undisputed facts following conclusions can be drawn :- (1)For the purposes of determining whether land is agricultural land or not it is the prima facie satisfaction of the LAO. The law does not provide any role to the Assessing Officer in such determination at the time of awarding compensation. (2)The Land Acquisition Officer has to only prima facie decide whether the land being acquired by him is an agricultural land or not. (3)For the purposes of determining whether the land in question is agricultura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development authority, there is no question of further examination of this aspect on the premise that it is either non-agricultural or land converted etc. 19. Insofar as the understanding of the provisions of s. 194LA is concerned, I find that unlike many other sections under the Act, this section is fairly short and simple. It does not give scope for either ambiguity or interpretation. It has to be merely read and understood and nothing more. The caption to the section which reads as Payment of compensation on acquisition of certain immovable property is very indicative as to for what purpose the provision has been made. One should appreciate that the liability here is an artificial liability on the person distributing the compensation in respect of immovable property as in the hands of the recipient the compensation received may be capital gain which is income taxable under the Act and therefore the legislature wanted a safeguard in favour of the Revenue by providing for deduction at source at some percentage of the amount paid by way of compensation so that the deducted amounts act as security for realization of the actual liability of tax to be determined by the authority lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Section 194A does not provide any physical verification of the assessee to inspect the fields and find out whether the lands are actually cultivated or not. What section imposes is determination of the record which has been done by the assessee. (iii) Barani land is a type of agricultural land which is clearly evident from Revenue regulations and record placed on the paper book. The objection raised by the AO and ld. CIT(A) about Girdawari is irrelevant and no-consequential. (iii) Tehsildar appointed by JDA cannot be denied to be a Revenue Officer inasmuch as he works as a Revenue Officer in terms of JDA Act. (iv) The language of Section 194LA being plain and simple it provides no physical verification of land by LAO about carrying on of agricultural operations. In the framework of sec. 194LA, there is no need of applying rules of interpretation and imposing further condition to go beyond the scope of obligation as prescribed under the Act In view thereof, we hold that the assessee has been able to demonstrate from the record that impugned agricultural land acquired by the assessee are agricultural land on per records and in terms of Section 194LA, Explanation (i). T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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