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Commissioner of Income Tax (TDS) , NCRB, Jaipur Versus Jaipur Development Authority, JLN Marg, Jaipur And Pr. Commissioner of Income Tax (TDS) , Jaipur Versus Rajasthan Housing Board

Agricultural or non agricultural land - ascertainment of nature of land - proof of agricultural operation - TDS u/s 194LA - TDS determined only on the basis of records furnished by assessee and no inquiry, investigation, physical verification is permissible/desirable at the end of assessing officer - Held that:- The assessee is the Urban Development Authroity which requires the amount for the purpose of paying compensation to the agriculturists. - In view of the observations which are made b .....

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ng compensation of an agricultural land, we are of the considered opinion that the judgment of Sarifabibi will not apply in the facts of the present case. - While interpreting the view, we have to look into that the local authority is acting in the interest of State as a whole or not. In the present case, for the purpose of taxation, if the interpretation which has been canvassed by the counsel is accepted, it will put loss to the authority and they have to pay higher compensation. In that v .....

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ppellant : Mr. Sameer Jain For the Respondent : Mr. Sanjay Jhanwar JUDGMENT 1. Since in all these appeals, common questions of law and facts are involved, they are decided by this common judgment. 2. By way of these appeals, the appellants have challenged the judgment and order passed by the tribunal whereby the tribunal has allowed the appeals preferred by the assessee, modifying the order of the A.O. and the CIT(A) which has dismissed the appeal. 3. This court while admitting the appeals on 27 .....

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ultural land, Agricultural income and provisions of Chapter-XVII and intends to Tax the land on which no agricultural operation are carried out as per mandate of Sections 2 (1A), 2(14), 2(24), 2(31), 10(1A) and 194 LA 4. Counsel for the appellant while arguing the matter has taken us to the material on record and more particularly the observations made by the AO which reads as under:- 4.6. In order to gather information regarding actual use of land so acquired, the assessee was requested vide th .....

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rom respective Tehsildars for the period beginning four years before the date of notification for acquisition of lands so acquired by JDS. A Girdawari report gives details regarding actual nature and use of land, such as crops grown, uses for habitation, etc. From the Girdawari reports so obtained from Tehsildars, it was found that majority of land acquired by the assessee on which no TDS was deducted was either barren land or land unsustainable for cultivation. Further, as per Girdawari no cult .....

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in with, a cetificate from deductee that the land being acquired is agricultural land is not any evidence. The certificate from Tehsildar that was produced by the assessee was of a person who is an employee of the assessee. He is only designated 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 is not the same as Tehsildar appointed by the State Government. Now for the internal procedure being followed by the assess .....

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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 utilisation. During the course of verification, the assessee was not found in possession 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 discussion in the preceding para, as to what constitutes agricultural land, the submission .....

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produce before the department whenever called for. However, as is evident from discussion in preceding paras, no such evidences were collected to ensure that land was agriculture and being used for agricultural purposes. Further, evidences gathered by the department from Tehsildars, and on the basis of physical verification of such land as mentioned in Table 1, it is seen that the land are not agricultural land nor have they been used for agricultural purposes. 5. He has also taken us to the ob .....

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ade by the Tribunal which reads as under:- 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. Thus, there is no question of raising demand against the assessee u/s 201(1) and 201(1A) of the Act and hold the assessee to be in default. Consequently, the orders of the lower .....

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tending that the land sold is an agricultural land. The Income-tax Officer rejected the assessees' claim whereupon they approached the Appellate Assistant Commissioner by way of appeals but without success. The appellants then approached the Tribunal. Their appeals were heard by a Bench of two members who differed among themselves whereupon the matter was referred to third member who held that the said extent of land is agricultural land and, therefore, no capital gains tax is leviable there .....

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rpose. It is sold to a cooperative housing society for constructing house and buildings. (4) It is sold at a per sq. yds. basis at ₹ 23 per sq.yd. on May 30, 1969. (5) No agricultural operations such as growing of wheat, Bajra, Juwar, rice, groundnuts or cotton crop have been carried on for the last 4 years. Only grass for fodder is grown in the last year. (6) An application for permission to sell the land to a housing society under Section 63 of the Land Revenue Code was made in August 19 .....

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ltural income? The decision that directly considered the issue, though under the Wealth Tax Act, is in C.W.T., Andhra Pradesh v. Officer-in-charge (Court of Wards),Paigah (hereinafter referred to as to 'Begumpet Place case') reported in (105 I.T.R. 133). It was an appeal from a Full Bench decision of the Andhra Pradesh High Court. The High Court had taken the view, following a decision of the Madras High Court in Sarojini Devi v. Sri Krishna that the expression "agricultural land &q .....

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ion given". The idea behind exempting the agricultural land is to encourage cultivation of land and the agricultural operations. "In other words this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Full Bench of the Andhra Pradesh High Court", (b) What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land by some possible further owner or posses .....

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facts of each particular case." (e) The fact that the land is assessed to the Land Revenue as agr icultural land under the State Revenue Law is certainly a relevant fact but if is not conclusive. 18. The Bench observed that to ascertain the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the relevant date and further whether on the relevant date the land was intended to be put to use .....

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d on within the said span of four months, - the Bench held - it was evidently in the nature of a stop-gap arrangement. On the date the land was sold, the Bench held, the land was no longer agricultural land which is evident from the fact that the assessee had obtained permission even in August 1966 to convert the said land to non-agricultural purposes. 20. Now, we may consider the various circumstances appearing for and against the appellant's case. The facts in their favour are: land being .....

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their case: the land was situated within the municipal limits - it was situated at a distance of one kilometer from the Surat railway station; the land was not being cultivated from the year 1965-66 until it was sold in 1969; the appellants had entered into an agreement sale with a Housing Cooperative Society to sell the said land for an avowed non-agricultural purposes namely construction of houses; they had applied in June, 1968 and March, 1969 for permission to sell the said land for non-agr .....

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be answered keeping the criteria evolved in Bequmpet Palace case set out hereinbefore. In our opinion, the entering into the agreement to sell the land for housing purposes, the applying and obtaining the permission to sell the land for non-agricultural purposes under Section 63 of the Bombay Tenancy and Agricultural Lands Act an its sale soon thereafter and the fact that the land was not cultivated for a period of four years prior to its sale coupled with its location, the price at which it wa .....

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s clear from the fact of their application for permission to sell it for a nonagricultural purpose under Section 63 of the Bombay Tenancy and Agricultural Land Act. 8. He contended that the respondents assessee was required to deduct TDS as it is an agriculture land. 9. Counsel for the appellant has also relied on the judgment rendered by the Constitutional Bench of Supreme Court in the case of Commissioner of Wealth Tax, Andhra Pradesh Vs. Officer-In-Charge (Court of Wards) Paigah reported in 1 .....

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der- ations which had a bearing only on potentialities of the land for use for agriculture purposes. For the reasons already given, we do not think that the term "agr cultural land" had such a wide scope as the Full Bench appears have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each pa .....

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ation actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agriculal pur- pose, the land could not be "agricultural land" for the purses of earning an exemption under the Act. Entries in revenue ords are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities dec .....

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ct ether any of the lands under consideration were "agricultural" or t for the purposes of the Act before it. Accordingly, we allow these peals, set aside the judgment and order of the Full Bench and send the cases to the Tribunal for appropriate orders for giving opporpriate both sides to lead further evidence, if they so desire, and the decision of the cases in accordance with the law as declared w by this Court. The parties will bear their own costs throughout. 10. He has also relie .....

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ition of agricultural land given under Section 2(14)(iii)(a) and (b) makes it abundantly clear that the competent authority to decide whether any compensation awarded is exigible to income tax is the Income tax officer. So it is clear that the remedy available to the party is either to approach the competent authority under Section 197 of the Income Tax Act or pay the income tax and get it refunded. 7. The learned Counsel appearing for the petitioner has argued that at present there is no practi .....

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ertificate is issued. It is not disputed by the learned Senior Government Pleader that at present no notice is issued by the Land Acquisition Officer to the claimant informing him about the liability to pay income tax, I am of the view that it is only just and proper that the parties are given advance notice regarding the liability to pay income-tax. The Land Acquisition Officer can note this fact also, in the notice issued to the claimant under Section 9 of the Land Acquisition Act. The claiman .....

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follow the provisions of Income Tax Act strictly and deposit the amount collected within one week from the last day of the month in which the deduction is made. Regarding the present practice of collecting tax Shri Mohan C. Menon, learned Senior Government Pleader has submitted that at present the income tax deducted are deposited to the Central Government Account by using treasury chalans (in triplicate) presented to concerned treasuries under head of account 8658-00- 112-IT. It is further sub .....

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d to the Income Tax Zonal Office by the Treasury Branches. The learned senior Government Pleader has made available a circular issued by the Thrissur District Collector to the Land Acquisition Officers working under him regarding the procedure to be followed regarding deduction of tax at source. 18. Rule 30 of the Income-tax Rules deals with time and mode of payment to Government account of tax deducted at source. Rule 31 of the Income-tax Rules deals with certificate of tax deducted at source o .....

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. (2)... (3) The certificate mentioned in Sub-rule (1) shall be furnished within a period of one month from the end of the month during which the credit has been given or the sums have been paid or, as the case may be, a cheque or warrant for payment of any dividend has been issued to a shareholder. 20 In the case at hand, the petitioner claims exemption from the liability to pay income tax on the ground that as per the revenue records, the land acquired was agricultural land. The Land Acquisiti .....

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r. Sanjay Jhanwar has taken us to the judgment rendered by the Supreme Court in Sarifabibi (supra) more particularly para 12 of the judgment which reads as under:- 12. Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may .....

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r of land, in our view, we have to consider the provisions of the Code in question and so also the definition so provided to deal with the concept of "agricultural land". There is no issue that the land owners require to transfer the property within the framework of laws. Under the Code, there is no bar that an agriculturist and/or one who possesses agricultural land cannot transfer such land to any third party who is not agriculturist. Nothing contrary has been pointed out and/or plac .....

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mittedly, the property was not divided and/or subdivided. Admittedly, before transfer of the property, the parties were fully aware about the nature of the land which includes rocky area, use and usable area for agricultural, purpose number of trees, plants growing or in existence for so many years, apart from certain plantations. Being the ancestral agricultural property, the families were using the agricultural produce for their own consumption. 13. Here, at this stage, it is relevant to note .....

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h they had been using before transfer and/or till the date it came to be transferred as an "agricultural land". There is nothing to prevent them from using such land for deriving nutriment from the soil with the aid of human labour and skill, which also includes the appellants' own labour and/or skill. Whatever number of trees which are developed and/or grown were planted, developed and grown by the assessees for so many years and/or have been maintaining the same for various activ .....

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griculture" itself permitted, such unused land to be used and utilized even for grazing, horticulture, dairy farming, stock breeding. This is clear terms of the law and so also the intent of the Code which governs such agriculture land and its transfer. The report so submitted and/or referred to by the Department against the assessee, in our view, is unsustainable, unacceptable and contrary to the specific provisions of the Code. All the "agriculture" activities so defined covers .....

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By any act or inaction of unauthorised use of such agricultural land to non-agricultural purpose, in no way, legally converts such agricultural land to nonagricultural land. It is only subject to penalty and/or charges for such use of agricultural land to nonagricultural purpose. Admittedly, there is nothing on record to show that such application was ever filed at any point of time prior to the date of its transfer and/or even thereafter at least by the assessee or by the third party, after pur .....

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ITR 700 regarding the question of agricultural land. The Patna High Court has observed as under:- 7. In the case of CWT v. Officer-in-Charge (Court of Wards), Paigah [1976] 105 ITR 133 (SC), while trying to define an "agricultural land", it was observed by the Supreme Court as follows (p. 136): "We think that this must be land which could be said to be either actually used or ordinarily used or meant to be used for agricultural purposes. In other words, 'agricultural land' .....

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and is sold; what was the nature of the land on that day and not what it would be in future. In the case of Addl. CIT v. Tarachand Jain [1980] 123 ITR 567 (Pat), this court considered a similar question. In that case the ITO had found that, (a) for the last 2 to 3 years no agricultural operation had been carried out on the land, (b) although the land was agricultural land in the past, owing to the development of the town it acquired the character of urban property, and (c) it had been sold for t .....

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arried on and yet the owner had always intended to use it for agricultural purposes. In the case of CIT v. Manilal Somnath [1977] 106 ITR 917 (Guj), it was held that in order to determine whether a particular land is agricultural land or not one has first to find out the use to which it is being put. In the case of CED v. V. Venugopala Varma Rajah [1976] 105 ITR 593, the Supreme Court again pointed out that "the question whether a land is an agricultural land" has to be decided on evid .....

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the purpose of determining whether they are subject to capital gain. 15. He has relied upon decision of the Delhi High Court in the case of Commissioner of Income Tax Vs. Moonlight Builders & Developers reported in (2008) 307 ITR 0197 which reads as under:- 8. Precisely the same thing has happened insofar as these appeals are concerned. The revenue has accepted the primary orders passed by the Tribunal on 14-7-2003 and 14-6-2004 but has chosen to challenge the orders passed by the Tribunal i .....

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revenue to seek to recover tax from one assessed while declining to recover tax from another assessed on identical facts. 9. Following the decisions of the Supreme Court as well as of his Court, we dismiss these appeals and hold that no substantial question of law has arisen for our consideration. 16. He has also relied on the decision of the Gujarat High Court in the case of Commissioner of Income tax (TDS) Vs. Special Land Acquisition Officer reported in (20160 242 Taxman 398 wherein the Cour .....

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on agricultural land. 22. In this context, we are prepared to accept the revenue's contention that mere award by the Land Acquisition Officer would not be conclusive. This is so for two reasons. Firstly, the aim and object of passing an award under the Land Acquisition Act, 1894, is to arrive at a just compensation for compulsory acquisition of the property of a citizen. The paramount consideration before the Special Land Acquisition officer at that stage is to ascertain the market value of .....

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d or otherwise. Such question when so needed can be decided only by the Assessing Officer and the view of the Land Acquisition Officer expressed in acquisition award would not be final, binding or conclusive. 23. Nevertheless, at the stage of deciding whether the Special Land Acquisition Officer committed an error in not collecting the tax at source while releasing the compensation, vital question would be, did the Assessing Officer have sufficient materials to ignore the Government land records .....

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completed and possession of the land was handed over to the company for whose benefit the acquisition was carried out. The character of the land also would have undergone major changes. It would be highly unsafe to rely on a spot visit by the Assessing Officer of such circumstances to overrule the initial presumption available from the revenue records that the lands were agricultural lands. Like-wise, the certificate of the Agricultural Officer was also general in nature and did not pinpoint wh .....

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either not put to agricultural use or was not capable of so using. 25. We may however, clarify that these are observations made only for the purpose of deciding the applicability of section 194LA of the Act and would not preclude the revenue from pursuing the issue in the context of tax liability of the persons receiving the compensation for the land acquired. 17. He has relied on the decision of the Mumbai Tribunal in the case of Income Tax Officer Vs. Special Land Acquisition Officer reported .....

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rious factors whether the land is under cultivation or Barron/desolated, if the land is thickly habituated and constructed are relevant for the purpose of acquisition. Accordingly these are the various necessary factors have to be taken into account for acquisition of the land. These are categories of the agricultural land itself and does not change the nature and character of the agricultural land itself. The rate of compensation of the agricultural land also depend upon the various classes /ca .....

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e of section 194LA. The Explanation provided u/s 194LA clearly manifests that the definition u/s 2(14) of the Act is not relevant because the land situated in the area as referred in the item (a and b) of the clause of the subclause (iii) clause 14 of Section 2 is also included in the term agricultural land. The definition under s. 2(14) is for the purpose of taxing the capital gain on transfer of the land. Whereas the term use under s. 194LA is only for the limited purposes of deduction of TDS .....

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has to be decided by the Income Tax Authority and not by the Land Acquisition Authority. There is no quarrel on this point that when there is a dispute about the question of whether the land acquired is a agricultural land, the competent authority is the Income Tax authorities. However, in the case in hand, the AO has dealt with the question and the CIT(A) has already considered this question and came to the conclusion that the land in question acquired by the authority is agricultural land and .....

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e out with the arguments that since the land was not under cultivation and it was not fit for agricultural, therefore, it cannot be treated as agricultural land. To our mind it is not a decisive factor when the land itself is agricultural land though may not be used for agricultural purposes but unless and until the same is used for non agricultural purposes it cannot be said that the land cannot be treated as agricultural land for the purposes of section 194LA. Even otherwise these questions ar .....

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- 13. We are aware of the fact that strictly speaking resjudicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in .....

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bligation cast on a person distributing compensation to deduct tax at source is only in respect of payment for immovable property such immovable property does not included agricultural land irrespective of its location- Not the liability of the person distributing the compensation, but the liability of person receiving the compensation amount-Legislature has taken care to levy tax on the income, which is other than agricultural income-Petition allowed. 21. We have heard the counsel for the parti .....

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Notification: Rates for supply of services under IGST Act

Notification: List of Exempted supply of services under the CGST Act

Notification: Rates for supply of services under CGST Act

Highlight: Acceptance of deposits by companies from its members - conditions relaxed in case of Specified IFSC Public company and a private company - Rule 3 amended

Notification: Rate of exchange of conversion of the foreign currency with effect from 8th September, 2017

News: Tax Payers Advised To Confirm Identities Of Income Tax Search Authorities

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Notification: The Customs and Central Excise Duties Drawback Rules, 2017



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