This Article Discusses In Detail The Applicability Of Schedule I, II And III On The IV Schedule Of The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013. Further, This Article, Citing Important Case Laws And Legal Development, Explains How Income Tax Is Not Attractable To Compensation Received On Compulsorily Acquisition By NHAI.
The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (Hereinafter Referred To As “The New Act”) Is A Legislation Created By Clever Legislators, Much To The Obliviousness Of Several Learned Counsel And Advocates, That Exempts The Levy Of Income Tax Or Stamp Duty On Awards Or Agreements Made Under The New Act.
The Issue Here Is Whether The Land Acquired Compulsorily By NHAI Via National Highway Act, 1956 For Which Compensation Is Paid As Per The New Act Is Exigible To Income Tax?
The New Act Came Into Force On 1st January 2014, Thereby Repealing The Erstwhile Land Acquisition Act, 1984. Sec. 96 Of The New Act Provides For:-
“Exemption From Income-Tax, Stamp Duty And Fees.–No Income Tax Or Stamp Duty Shall Be Levied On Any Award Or Agreement Made Under This Act, Except Under Section 46 And No Person Claiming Under Any Such Award Or Agreement Shall Be Liable To Pay Any Fee For A Copy Of The Same.”
ORIGIN OF SECTION 96
The Origin Of Section 96 Can Be Traced Back To Clause 90 Of The Land Acquisition, Rehabilitation And Resettlement Bill, 2011 Which Reads As Follows:
“90. No Award Or Agreement Made Under This Act Shall Be Chargeable With Stamp Duty, Except Under Section 42, And No Person Claiming Under Any Such Award Or Agreement Shall Be Liable To Pay Any Fee For A Copy Of The Same.”
This Clause Provides For An Exemption From Stamp Duty On Any Award Or Agreement Made Under The Act, Except An Award Or Agreement Made Under Section 42. The Said Clause Also Granted Further Exemption From Payment Of Any Fee For Obtaining A Copy Of The Award. Save The Exception By Way Of Sec. 42, Clause 90 Of The Bill Is Pari Materia To Section 51 Of The Erstwhile Land Acquisition Act, 1894 That Provided For Identical Exemptions.
Originally Clause 90 Did Not Provide For Exemption From Income Tax. Clause 90 Was Further Amended To Include Income Tax Exemption. The Raison D’être For Inserting A Further Exemption From Income Tax Can Be Found In A Recently Published Book Co-Authored By Mr. Jairam Ramesh Who Was The Then Minister Of Rural Development When The Bill Was Introduced In The Lok Sabha On The 7th Of September 2011. It Seems That The Suggestion To Include An Exemption From Income Tax Was Raised In “All Party Meetings” By Certain Members Who Were Of The Opinion That It Would Be “Grossly Unfair To Levy Any Taxes” When Land Was Being Acquired By The State For “Public Purpose”. Therefore, On March 5, 2013, The Government Circulated A List Of Amendments To The Bill, Including An Amendment To Clause 90. The Amendment Added An Exemption From Payment Of Income Tax On Any Award Or Agreement Made Under The New Act, In Addition To Exemption From Stamp Duty And Payment Of Fee For Receiving A Copy Of The Award. The Exemption Would Not Apply Where The Land Is Being Taken For Private Purchase Under Section 46 Of The New Act. This Amendment Culminated Into The Provision In Its Present Form.
APPLICABILITY OF SECTION 96 TO ACQUISITIONS INITIATED BY NHAI UNDER NATIONAL HIGHWAY ACT, 1956.
Before Analysing Whether Section 96 Applies To Acquisitions Under The NH Act 1956, It Is Imperative To First Examine Whether The NH, Act 1956 And Its Subsequent Amendments Apply To The New Act.
The New Act Is Not Applicable To The Statutes Mentioned In The Fourth Schedule Of The Act By Virtue Of Sec 105. Sec 105 Of The New Act Reads As:
105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.–
(1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules,
being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following
the session or 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 National Highway Act 1956 Is An Act To Provide For The Declaration Of Certain Highways And For The Matters Connected Therewith. Circular No. NH 11011/30/2015-LA By Government Of India Issued By Ministry Of Roads And Transport And Highways, Dated 09/01/2018, Have Clarified The Applicability Of Provisions Of RFCTLAAR Act 2013 To
NH Act 1956. It Has Been Made Clear That “All Cases Of Land Acquisition Where Award Has Not Been Announced U/S 3G Of The NH Act Or Where Such Awards Have Been Announced But Compensation Had Not Been Paid In Respect Of Majority Of Land Holdings Under Acquisition As On 31.12.2014 The Compensation Would Be Payable In Accordance With The First Schedule Of The RFCTLAAR Act 2013.
A Close Examination Of Section 96 Would Show That The Said Section Specifically States That The Exemption From Income Tax And Stamp Duty Would Apply To (A) Awards Or (B) Agreements Made Under The New Act. Sec. 23 Of The New Act States About Enquiry And Land Acquisition Award By Collector. Sec. 82 States About Power To Enter And Take
Possession And Compensation. Though The Acquisition Is Initiated Under The NH Act 1956, The Collector Proceedings “To Take Order For The Acquisition” Is Under The New Act And Thereafter, The Collector Passes An Award In Conformity With The New Act And Not Under The NH Act. Therefore, The Benefit Of Exemption From Income Tax And Stamp Duty Will Certainly Be Applicable To The Award Passed For Acquisitions Under Section 3G Of NH Act Because Effectually The Compensation Is Passed Under The Provisions Of The New Act, Even Though It Is Coloured As Sec 3G Of The NH Act.
The NH Act, 1956 Finds A Place At Point 7 In The Fourth Schedule. However, Order U/S 113 Power Of Removal Of Difficulties, Dated 28th August 2015, Issued By The Ministry Of Rural Development, Extended The Benefits Of Compensation, Rehabilitation And Resettlement Mentioned In First, Second And Third Schedules To The Statutes Mentioned In The Fourth Schedule Of The Act. An Excerpt Of The Effective Part Of The Above Order Published In
Official Gazette Of India Is Reproduced Below:
Now, Therefore, In Exercise Of Powers Conferred By Sub-Section (1) Of Section 113 Of The Right To Fair Compensation And Transparency In Land Acquisition, Rehabitation And Resettlement Act, 2013 (30 Of 2013), The Central Government Hereby Makes The Following Order To Remove The Aforesaid Difficulties, Namely:-
1. (1) This Order May Be Called The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement (Removal Of Difficulties) Order, 2015.
(2) It Shall Come Into Force With Effect From 1st Day Of September, 2015.
2. The Provision Of The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013, Relating To The Determination Of Compensation In Accordance With First Schedule, Rehabilitation And Resettlement In Accordance With The Second Schedule And Infrastructure Amenities In Accordance With The Third Schedule Shall Apply To All Cases Of Land Acquisition Under The Enactment Specified In The Fourth Schedule Of The Said Act
The Above Order Passed By The Ministry Of Rural Development Makes It Abundantly Clear That The Compensation Which Is Provided Under The New Act And Is Calculated In Accordance With Schedule First, Second And Third Shall Also Be Applicable On The Fourth Schedule. Meaning Thereby That, The Opaque Blanket Provided By The Fourth Schedule
The NHAI Is Governed By National Highway Authority Of India Act 1988, Clause 13 Of NH Act States That “Compulsory Acquisition Of Land For The Authority.—Any Land Required By The Authority For Discharging Its Functions Under This Act Shall Be Deemed To Be Land Needed For A Public Purpose And Such Land May Be Acquired For The Authority Under The Provisions Of The National Highways Act, 1956”.
Section 2 Of The New Act States That The Provisions Of This Act Relating To Land Acquisition, Compensation, Rehabilitation And Resettlement, Shall Apply, When The Appropriate Government Acquires Land For Its Own Use, Hold And Control, Including For Public Sector Undertakings And For Public Purpose, And Shall Include The Following Purposes,Namely:— Subclause (B) For Infrastructure Projects, Which Includes The Following, Namely:— (I) All Activities Or Items Listed In The Notification Of The Government Of India In The Department Of Economic Affairs (Infrastructure Section) Number 13/6/2009-INF, Dated The 27th March, 2012, Excluding Private Hospitals, Private Educational Institutions And Private Hotels; The Word Public Purpose In The New Act Means ― Public Purpose Means The Activities Specified Under Sub-Section (1) Of Section 2; The Word “Infrastructure Project” Means And Shall Include Any One Or More Of The Items Specified In Clause (B) Of Sub-Section (1) Of Section 2 Of The New Act.
Thus, RFCTLAAR Is Applicable To The Lands Forcefully Compulsorily Acquired For Public Purpose And Development Of Highway Falls Under Infrastructure Project Of Public Purpose. Hence, First By Order Of Removal Of Difficulties And Then By Virtue Of Section 2 Of The RFCTLAAR Act Makes It Amply Clear That Provisions Of RFCTLAAR Act 2013 Are Applicable For Acquisition Of Land Where Acquisition Have Been Done Under NH Act 1956. The Land So Acquired Is Inevitably For Public Purpose And Hence The Person Or Assesee Cannot Be Deprived Of His Property In Gross Disregard Of The Law Of Land.
PREAMBLE OF THE NEW ACT
Preamble Of The New Act States That The Intention Of Legislature Is To Consider The Land Losers As Their Contribution To Development Of Country. However, After The New Act, Being A Beneficial Legislation, Has Come Into Force, The Benefit/Exemption Of Income Tax Provided For Under Section 96 Would Squarely Apply To Awards.
CIRCULAR 36/2016 OF INCOME TAX
A Clarificatory Circular 36 /2016 In Para 2 States That Any Award Under The RFCLTAAR Act Is Exempt From Income Tax. The Purpose Of The Circular Was To Clarify 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, 1961 Even If There Is No Specific Provision Of Exemption For Such Compensation In The Income Tax Act, 1961.
S 2(14) Of The ITA, 1961 Defines Capital Asset By Exempting Only The Agricultural Land, That Too Located Not In The Specified Urban Area Without Any Reference To The Compulsory Acquisition U/S 96 Of RFCTLAAR Act. However, Vide Circular No 36/2016 The CBDT Has Extended The Exemption By Including Compulsorily Acquired Land Without Any
Restriction On Area As Well The Classification Of Land
CERTAIN JUDICIAL PRONOUNCEMENTS
The Hon’ble High Court Of Kerala In The Judgment Dated 12/07/2017 Wherein The Question Before The Hon’ble Court Consideration Was The Petitioner Entitled To Compensation As Per RFCTLAAR Act 2013. Where All The Writs Were Allowed Subject To Safety Precautions Made Above With Respect To The Surrender Land.
In The Case Before The Hon’ble Kerala High Court Decided On 04 January 2018, Where The Petitioner Received Compensation On Compulsory Acquisition Made By The Kochin Metro Rail Ltd. Was A Party. The Petitioner Was Under An Impression That The Capital Gains Resulting From The Acquisition Of The Land Is Exigible To Tax Under The Act. In View Of Sec. 96 Of The New Act, Amount Of Compensation Became Exempt From Tax, The Hon’ble Court Held That The Prayer Made By Assessee To Drop Proceedings Initiated Against Him Could Not Be Turned Down On Technical Plea That Assessee Had Not Filed A Revised Return.
It Is To Be Noted That The Kochin Metro Rail Ltd Is Constituted By Government Of Kerala And Government Of India As A Special Purpose Vehicle For The Implementation Of Project. Ministry Of Urban Development In Official Gazette, Dated 14/08/2013, Via Notification SO 2458(E) In Exercise Of Power Respectively Conferred By Sub-Section (3) Of Section 1 Of The Metro Railway (Construction And Works) Act, 1978 And Sub-Section 2 Of Section 1 Of Metro Railways (Operation And Management) Act, 2002 The Central Government Afterconsultation With The Government Of Kerala Declared That The Provisions Of Said Act Shall Respectively Extend To Metropolitian Area Of Kochi In The State Of Kerala With Effect From The Date Of Publication Of This Notification In The Official Gazette. Thus Metro Railway (Construction And Works ) Act, 1978 Is Applicable To Kochin Metro Rail Ltd Which Is One Of The Enactment Mentioned In Fourth Schedule Of Posing Restriction On RFCTLAAR Act. The Above Stated Two Judgments Makes It Amply Clear That The Enactment In The Fourth Schedule Are Also The Entitle To Undergo The RFCTLAAR Provisions.
TDS U/S 194 LA NOT TO BE DEDUCTED FROM 01/04/2017
One Of The Issues That Came Up For Consideration Before Two High Courts Namely The Kerala High Court And The Erstwhile High Court Of Hyderabad For The State Of Andhra Pradesh And Telangana, Was Whether Income Tax Is To Be Deducted At Source Under Section 194-LA Of The Income Tax Act For Acquisitions Covered By Section 96. Both The
High Court Gave Divergent Opinions On The Issue. The Kerala High Court Had To Consider Whether The Kochi Metro Rail Was Liable To Deduct Tax At Source (TDS) From Payments Of Compensation To The Persons From Whom Land Was Acquired In Connection With The Metro Project In Kochi, In Light Of The Specific Exemption Under Section 96. The Argument Of The Petitioner In The Instant Case Was That Section 96 Would Prevail Over The Then Section 194- LA Of The Income Tax Act Which Was Subsequently Amended In 2017. Section 194-LA (Prior To And Post The Amendment By The Finance Act, 2017) Mandates A Deduction Of Ten Percent As Income Tax From The Compensation Or Enhanced Compensation Received On Account Of Compulsory Acquisition Of Immovable Property (Other Than Agricultural Land),
Under Any Law For The Time Being In Force. The Kerala High Court Rejected The Argument Of The Petitioner And Held That Ten Percent Deduction Would Apply To Acquisitions Under The New Land Acquisition Act And Section 96 Would Not Come To The Aid Of The Petitioner. However, The Hyderabad High Court Considered The Above Mentioned Judgment Of The Kerala High Court And Distinguished The Same By Holding That Section 96 Would Prevail
Over Section 194-LA Of The Income Tax Act And No Income Tax/TDS Is To Be Paid Or Deducted From The Compensation. Pursuant To The Above Mentioned Decisions, The Union Government Amended Section 194-LA Of The Income Tax Act By Inserting A Proviso To The Said Section With Effect From The 1st April Of 2017 Which Stated That No Deduction Shall Be Made Under Section 194-LA Of The Income Tax Act With Respect To Any Award Or Agreement Exempted From The Levy Of Income Tax Under Section 96. Though The Statement Of Objects And Reasons As Well As The Notes Of Clauses Of The Finance Bill 2017 Does Not Indicate The Reason Behind The Amendment, It Seems Quite Likely That The Union Government Took Note Of The Judgments Of The Kerala And Hyderabad High Courts And Suitably Amended The Section To Avoid Any Confusion.
SOLATIUM AND INTEREST ON COMPENSATION
General Meaning Of Solatium Is Something Given In Compensation For Inconvenience, Loss, Or Injury. Any Such Claim Received Is In Addition To The Compensation And Is As Equivalent To Compensation And Further Is A Part Of Compensation. When The Compensation Is Not Chargeable To Tax Then The Enhanced Compensation Is Also Not Chargeable To Tax. The Word “Interest ” Is Not Used Here, Hence The Additional Component So Received Can Be Considered To Be Capital Receipt And Not A Revenue “Interest” Receipt. Sec 30 Of The RFCTLAAR Act Provides For Award Of Solatium:–
(1) The Collector Having Determined The Total Compensation To Be Paid, Shall, To Arrive At The Final Award, Impose A ―Solatium Amount Equivalent To One Hundred Per Cent. Of The Compensation Amount. Explanation.—For The Removal Of Doubts It Is Hereby Declared That Solatium Amount Shall Be In Addition To The Compensation Payable To Any Person Whose Land Has Been Acquired.
(2) The Collector Shall Issue Individual Awards Detailing The Particulars Of Compensation Payable And The Details Of Payment Of The Compensation As Specified In The First Schedule.
(3) In Addition To The Market Value Of The Land Provided Under Section 26, The Collector Shall, In Every Case, Award An Amount Calculated At The Rate Of Twelve Per Cent. Per Annum On Such Market Value For The Period Commencing On And From The Date Of The Publication Of The Notification Of The Social Impact Assessment Study Under Sub-Section (2) Of Section
4, In Respect Of Such Land, Till The Date Of The Award Of The Collector Or The Date Of Taking Possession Of The Land, Whichever Is Earlier.
Another Type Of Interest In The RFCTLAAR Act Is Under Proscribed Under Sec 72 Where If A Collector Paid Compensation Is Less Than What He Was Ought To Pay Then The Authority Concerned May Direct Collector To Pay An Interest On Such Excess Which He Was Ought To Pay At The Rate Of Nine Per Cent. Per Annum From The Date On Which He Took Possession Of The Land To The Date Of Payment Of Such Excess Into Authority.
Proviso To Sec 72 Reads As That Authority Concerned May Also Direct To Pay, Where Such Excess Or Any Part Thereof Is Paid To The Authority After The Date Or Expiry Of A Period Of One Year From The Date On Which Possession Is Taken, Interest At The Rate Of Fifteen Per Cent. Per From The Date Of Expiry Of The Said Period Of One Year On The Amount Of Such
Excess Or Part Thereof Which Has Not Been Paid Into Authority Before The Date Of Such Expiry.
RELIANCE IS PLACED ON FOLLOWING JUDGEMENTS
In The Case Of Vitthal Gurunath Patil In The Hon’ble Pune Income Tax Appellate Tribunal “SMC” Bench Held The Commissioner Of Income Tax (Appeals) While Confirming The Order Of Assessing Officer Has Observed That The Case Of Assessee Is Covered By The Decision Of Hon’ble Apex Court In The Case Of Bikram Singh & Ors. Vs. Land Acquisition
Collector & Ors. As The Said Judgment Is Delivered By Larger Bench And Prevails Over The Decision Rendered In The Case Of Commissioner Of Income Tax Vs. Ghanshyam (HUF) Which Is Though Subsequent In Time But Is Rendered By Division Bench. We Do Not Concur With The Findings Of Commissioner Of Income Tax (Appeals) To Make The Addition.
Undisputedly, While Rendering The Decision In The Case Of Commissioner Of Income Tax Vs. Ghanshyam (HUF) The Judgment Of Larger Bench In The Case Of Bikram Singh & Ors. Vs. Land Acquisition Collector & Ors. Was Not Considered. However, We Find That There Is No Conflict Of Law Laid Down In Both The Cases. The Hon’ble Supreme Court In The Case Of Commissioner Of Income Tax Vs. Ghanshyam (HUF) Has Clearly Marked The Distinction Between The Interest Received U/S. 23(1A) And 23(2) R.W.S. 28 Of The L.A. Act Vis-À-Vis Interest On Delayed Payment Of Compensation U/S. 34 Of The L.A. Act. The Larger Bench Of Hon’ble Supreme Court Of India In The Case Of Bikram Singh & Ors. Vs. Land Acquisition Collector & Ors. Has Held That The Interest Received U/S. 34 Of The Act
On Delayed Payment Of Compensation Is A Revenue Receipt And Is Exigible To Tax. Both The Judgments Rendered By The Hon’ble Apex Court Have Held That Payment Of Interest On Delayed Payment Of Compensation U/S. 34 Of The L.A. Act Are Liable To Tax Under The Provisions Of Income Tax Act. A Perusal Of Material Available On Record Does Not Clearly Indicate Whether The Interest Component Which His Subject Matter Of Dispute In The Present Appeal Was Received By Assessee Under The Provisions Of Section 23(1A) And 23(2) R.W.S. 28 Of The L.A. Act Or U/S.34 Of The L.A. Act. The Assessment Order Indicates That The Assessee Has Received Interest On Compensation/Enhanced Compensation U/S. 28 And 34. The Order Of Commissioner Of Income Tax (Appeals) Is Silent On The Fact Whether The
Interest Component Which Is Subject Matter Of Dispute Was Received By Assessee U/S.23(1A) And 23(2) Or U/S. 34 Of The L.A. Act.
Since The Issue Raised In Present Appeal Is Identical And The Nature Of Interest Is Not Decipherable From The Facts Recorded By Authorities Below, We Deem It Appropriate To Remit This Issue Back To The File Of Assessing Officer With Directions To Decide The Issue De-Novo In Line With Directions Given In ITA No.168/PUN/2016. Accordingly, Grounds
Raised By Assessee In Appeal Are Allowed For Statistical Purpose.
In Such Circumstances, When There Are Conflicting Decisions, The Rule Of Judicial Precedence Demands That The View Favourable To The Assessee Must Be Adopted, As Held By The Hon’ble Supreme Court In The Case Of CIT Vs. Vegetable Products. Recently, Jurisdictional ITAT Pune Has Followed The Above Decision And Also Held In The Case Of Annasahab Magar Sahakar Bank Maryadit, Bosari-Pune Dt.29-01-2015 That: “At The Time Of Hearing, It Was A Common Point Between The Parties That An Identical Controversy Has Been Considered By The Pune Bench Of The Tribunal In The Case Of ACIT Vs The Omerga Janta Sahakari Bank Ltd And Following The Proposition That In The Absence Of Any Judgment Of The Jurisdictional High Court, There Being Contrary Judgments Of The Non-Jurisdictional High Courts, A Decision Which Was Favourable To The Assessee Was To Be Followed In View Of The Reasoning Laid Down By The Hon’ble Supreme Court In The Case Of CIT Vs Vegetable Products Ltd, And Thus The Tribunal Decided The Issue In Favour Of The Assessee. It Advisable To First Find Upon The Nature Of Component Of Interest Whether Is In Form Of Additional Compensation Or Is A Revenue Nature And Then Ascertain The Taxability As Per The Principles Laid Down In Judgment Of SC.
Thus It Is Abundantly Clear Vide Order U/S 113 Power Of Removal Of Difficulties, Dated 28th August 2015, Under The New Act, Extended The Benefits Of Compensation, Rehabilitation And Resettlement Mentioned In First, Second And Third Schedules To The Statutes Mentioned In The Fourth Schedule Of The Act. Meaning Thereby That Any Award Or Compensation Passed Under The Enactment Listed Under The Forth Schedule Will Have To Be Calculated According To The New Act. Further, The Circular 36 /2016 In Para 2 States That Any Award Under The RFCLTAAR Act Is Exempt From Income Tax.
Circular 36/2016 Providing For Blanket Cover On The Award And Compensation, Irrespective Of Nature Of Land I.E. Agricultural Or Commercial, That The These Award And Compensation Will Be Tax Free. Reading Order U/S 113 Dated 28th Of August 2015 And Circular 36/2016 Together Portrays A Pristine Picture That The Compensation Paid Under The Statues Listed Under Fourth Schedule Will Also Be Exempted From The Levy Of Income Tax.
Thus Taking Into Account All The Above Points And Factors We Are Of The Considerate Opinion That The Compensation And Enhanced Compensation And Additional Compensation So Received In The Form Of Solatium Is Not Exigible To Income Tax Act, 1961.
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