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Compulsory acquisition of land and part of a building used for business

alankar surana (CA Practice ) (52 Points)

25 April 2018

Is Compulsory acquisition of non - agri land and part of building on which we are claiming Depreciation, by NHAI for the purpose of national highway taxable as capital gains ?? .

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Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (166249 Points)
Replied 25 April 2018

CIRCULAR NO.36/2016 [F.NO.225/88/2016-ITA.II], DATED 25-10-2016

Under the existing provisions of the Income-tax Act, 1961 ('the Act'), an agricultural land which is not situated in specified urban area, is not regarded as a capital asset. Hence, capital gains arising from the transfer (including compulsory acquisition) of such agricultural land is not taxable. Finance (No. 2) Act, 2004 inserted section 10(37) in the Act from 1-4-2005 to provide specific exemption to the capital gains arising to an Individual or a HUF from compulsory acquisition of an agricultural land situated in specified urban limit, subject to fulfilment of certain conditions. Therefore, compensation received from compulsory acquisition of an agricultural land is not taxable under the Act (subject to fulfilment of certain conditions for specified urban land).

2. The RFCTLARR Act which came into effect from 1st January, 2014, in section 96, inter alia provides that income-tax shall not be levied on any award or agreement made (except those made under section 46) under the RFCTLARR Act. Therefore, compensation received for compulsory acquisition of land under the RFCTLARR Act (except those made under section 46 of RFCTLARR Act), is exempted from the levy of income-tax.

3. As no distinction has been made between compensation received for compulsory acquisition of agricultural land and non-agricultural land in the matter of providing exemption from income-tax under the RFCTLARR Act, the exemption provided under section 96 of the RFCTLARR Act is wider in scope than the tax-exemption provided under the existing provisions of Income-tax Act, 1961. This has created uncertainty in the matter of taxability of compensation received on compulsory acquisition of land, especially those relating to acquisition of non-agricultural land. The matter has been examined by the Board and it is hereby clarified that compensation received in respect of award or agreement which has been exempted from levy of income-tax vide section 96 of the RFCTLARR Act shall also not be taxable under the provisions of Income-tax Act, 1961 even if there is no specific provision of exemption for such compensation in the Income-tax Act, 1961.

4. The above may be brought to the notice of all concerned.

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Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (166249 Points)
Replied 25 April 2018

SC directs assessee to approach AO to claim refund if Land Acquisition Collector wrongly deducted TDS

Where Land Acquisition Collector while disbursing compensation had deducted tax at source and deposited same with Income Tax Department, matter should have been remitted to Assessing Officer to decide nature of land acquired and whether tax was payable on compensation/enhanced compensation received on said land [2018] 91 tax mann.com 20 (SC)