Full Judgment Text
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PETITIONER:
COMMISSIONER OF INCOME-TAX,WEST BENGAL-II, CALCUTTA
Vs.
RESPONDENT:
HINDUSTAN HOUSING & LAND DEVELOPMENTTRUST LIMITED
DATE OF JUDGMENT29/07/1986
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
MUKHARJI, SABYASACHI (J)
CITATION:
1986 AIR 1805 1986 SCR (3) 390
1986 SCC (3) 641 JT 1986 2
1986 SCALE (2)142
ACT:
Income-tax Act, 1922 s. 4(1)(b)(i)/Income-tax Act,
1961: s. 5(1)(b)-Acquisition of land-Additional compensation
received-liability to tax-Income whether could be deemed to
have accrued or arisen during the relevant assessment year.
HEADNOTE:
During the pendency of the appeal by the State against
an arbitrator’s award made on July 29, 1955 enhancing the
original amount of compensation the Government deposited the
extra amount, which the assessee was permitted to withdraw
on May 9, 1956 on furnishing security. During the assessment
proceedings for the relevant assessment year the Income-tax
Officer brought that amount to tax as the assessee’s
business income. The Appellate Tribunal, however, accepted
the assessee’s contention that the amount could not be said
to have accrued to the assessee as its income during the
relevant previous year, and therefore, was not liable to tax
in the particular assessment year. The High Court answered
the question referred in favour of the assessee and against
the Revenue.
Dismissing the appeal of the Revenue, this Court,
^
HELD: It is only on the final determination of the
amount of compensation that the right to such income in the
nature of compensation arises or accrues and till then there
is no liability in praesenti in respect of the additional
amount of compensation claimed by the owner of the land.
[396G]
There is a clear distinction between cases where the
right to receive payment is in dispute and it is not a
question of merely quantifying the amount to be received,
and cases where the right to receive payment is admitted and
the quantification only of the amount payable is left to be
determined in accordance with settled or accepted
principles. [396H;397A-B]
391
In the instant case, although the award was made by the
arbitrator on July 29, 1955 enhancing the amount of
compensation payable to the assessee, the entire amount was
in dispute in the appeal filed by the Goverment. There was
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no absolute right to receive the amount at that stage, for
if the appeal had been allowed in its entirety the right to
payment of the enhanced compensation would have fallen
altogether. The sum, therefore, could not be said to have
accrued or arisen during the relevant assessment year.
[393G; 394A-B]
E.D. Sassoon & Company Ltd. and others v. Commissioner
of Income-tax, Bombay City, [1954] 26 ITR 27, Commissioner
of Incometax v. Jai Parkash Om Parkash Co. Ltd., (1961) 41
ITR 718, Pope The King Match Factory v. Commissioner of
Income-tax, [1963] 50 ITR 495, Khan Bahadur Ahmed Alladin &
Sons v. Commissioner of Income-tax, [1969] 74 ITR 651,
Topandas Kundanmal v. Commissioner of Income-tax, Gujarat,
[1978] 114 ITR 237, Harish Chandra Raj Singh v. The Deputy
Land Acquisition Officer & Anr., [1962] 1 SCR 676 and
Additional Commissioner of Income-tax, Gujarat, v. New
Jehangir Vakil Mills Co. Ltd., (1979) 117 ITR 849, referred
to.
Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-
Tax (Central), Calcutta, [1971] 82 ITR 363, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1126
(NT) of 1974
From the Judgment Order dated 9th January, 1973 of the
Calcutta High Court in Income Tax Reference No. 5 of 1967.
V.S. Desai, Dr. M.B. Rao and Miss A. Subhashini for the
Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by certificate granted by the
High Court is directed against the judgment of the Calcutta
High Court answering the following question in the negative:
"Whether on the facts and in the circumstances of
the case, the extra amount of compensation
amounting to Rs.
392
7,24,914 was income arising or accruing to the
assessee during the previous year relevant to the
assessment year 1956-57."
The assessee, who is the respondent before us, is a
limited company dealing in land. It maintains its accounts
on the mercantile system. By an order dated June 21, 1946
under rule 75A(1) of the Defence of India Rules read with s.
19 of the Defence of India Act, 1939 certain plots of land
measuring about 19.17 acres in village Kankulia in the
District of 24 Parganas and belonging to the assessee, were
requisitioned by the Government of West Bengal. Subsequently
the land was acquired permanently in the State Government
under s.5, Requisition of Land (Continuance of Powers) Act,
1951 by a notice of acquisition dated December 27, 1952
published in the Gazette dated January 8, 1953. The Land
Acquisition Officer awarded a sum of Rs.24,97,249 as
compensation payable to the assessee. The assessee was not
satisfied with the amount of compensation, and preferred an
appeal before the Arbitrator, 24 Parganas, Calcutta. The
Arbitrator made an award dated July 29, 1955 whereby he
fixed the amount of compensation at Rs.30,10,873 on account
of the permanent acquisition of the land, thus enhancing the
original amount of compensation by Rs.5,13,624 on which he
directed interest at 5 per cent per annum from January 8,
1953, the date of acquisition, to the date of payment. The
Arbitrator also directed that further recurring compensation
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at Rs.6272/10/4 per mensem should be paid to assessee from
the date of requisition till the date of the acquisition.
The State Government now appealed to the High Court and
during the pendency of the appeal on April 25, 1956 it
deposited Rs.7,36,691, which the assessee was permitted to
withdraw on May 9, 1956 on furnishing security. On receipt
of the amount the assessee credited it in its suspense
account on the same date.
During the assessment proceedings for the assessment
year 1956-57, the relevant accounting period being the year
ended March 31, 1956 the Income Tax Officer brought to tax a
sum of Rs.7,24,914 in the assessee’s business income. This
represented the difference between the sum of Rs.7,37,190
payable to the assessee in terms of the award dated July 29,
1956 of the Arbitrator and a sum of Rs.12,276 out of that
amount which had already been assessed to tax. The Income
tax Officer treated the sum as liable to income-tax during
that year on the basis that the income accrued to the
assessee on the date of the award.
393
The assessment was confirmed by the Appellate Assistant
Commissioner of Income-tax on first appeal. In second appeal
by the assessee before the Income-tax Appellate Tribunal,
two contentions were raised by it. It was urged that the
amount of compensation received by the assessee was not a
receipt of a revenue nature. It was also contended that in
any event the amount did not accrue to the assessee as its
income during the relevant previous year ended March 31,
1956. The Appellate Tribunal rejected the first contention
and held that the compensation received by the assessee
related to the acquisition of land which was the stock-in-
trade of the assessee, and was, therefore, a trading receipt
of the business carried on by the assessee, and therefore, a
receipt of a revenue nature liable to tax. The Appellate
Tribunal, however, accepted the other contention that the
sum of Rs.7,24,914 was not taxable in the assessment year
1956-57. It allowed the appeal accordingly by its order
dated February 22, 1964. At the instance of the Revenue the
Appellate Tribunal referred the question of law set out
earlier to the Calcutta High Court for its opinion, and by
its judgment dated January 9, 1973 the High Court answered
the question in favour of the assessee and against the
Revenue.
The question raised in this appeal is limited to the
point whether on the facts and circumstances of the case the
Revenue can claim that the sum of Rs.7,24,914 payable to the
assessee as compensation can be said to have accrued to it
as income during the previous year ended March 31, 1956
relevant to the assessment year 1956-57. Now as long ago as
E.D. Sassoon & Company Ltd. and others v. Commissioner of
Income-tax, Bombay City, [1954] 26 ITR 27 this Court
considered the question as to the point at which income
could be said to accrue or arise to an assessee for the
purpose of the Indian Income Tax Act. In the majority
judgment delivered by N.H. Bhagwati, J. it was explained
that the words "arising or accruing" describe a right to
receive profits, and that there must be a debt owed by some
body. "Unless and until there is created in favour of the
assessee a debt due by somebody", it was observed "it cannot
be said that he has acquired a right to receive the income
or the income has accrued to him". In the present case,
although the award was made by the Arbitrator on July 29,
1955 enhancing the amount of compensation payable to the
assessee, the entire amount was in dispute in the appeal
filed by the State Government. Indeed, the dispute was
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regarded by the Court as real and substantial, because the
assessee was not permitted to withdraw the sum of
Rs.7,36,691 deposited by the State Government on April 25,
1956 without furnishing a security bond for refunding the
amount in
394
the event of the appeal being allowed. There was no absolute
right to receive the amount at that stage. If the appeal was
allowed in its entirety the right to payment of the enhanced
compensation would have fallen altogether. This is a case
which must be distinguished from that decided by this Court
in Kedarnath Jute Mfg. Co. Limited. v. Commissioner of
Income-Tax (Central), Calcutta., [1971] 82 ITR 363 where the
liability to sales tax arose immediately on a dealer
affecting sales which were subject to sales tax and what
remained to be done was a mere quantification of that
liability. The case compares rather with Commissioner of
Income-tax v. Jai Parkash Om Parkash Co. Ltd. [1961] 41 ITR
718. The very foundation of the claim made by the assessee
was in serious jeopardy and nothing would be due if the
appeal was decided against the assessee. Our attention has
been drawn by the Revenue to Pope The King Match Factory v.
Commissioner of Income-tax, [1963] 50 ITR 495. That case,
however, proceeded on the basis that excise duty was payable
and its quantification alone remained to be decided in the
appeal. We may point out that the Andhra Pradesh High Court,
dealing with the taxability of compensation received under
the Land Acquisition Act in Khan Bahadur Ahmed Alladin &
Sons. v. Commissioner of Income-tax, [1969] 74 ITR 651 held
that when land was taken over by the Government the right of
the owner to compensation was an inchoate right until the
compensation had been actually determined and had become
payable. It was observed that the enhanced compensation
accrued to an assessee only when the Court accepted the
claim and not when the land was taken over by the
Government. Examining the question whether income could be
said to have accrued to the assessee on the date when
possession of the land was taken by the Government for the
purpose of assessment to tax in the year of assessment P.
Jaganmohan Reddy, C.J., speaking for the Court, said:
"If the actual amount of compensation has not been
fixed, no income could accrue to him. It cannot be
contended that the mere claim by the assessee,
after taking of possession, at a particular rate
or for a certain sum is the compensation. It is
the amount actually awarded by the Collector or
subsequently decreed by the court which accrues to
him, and the respective amounts, whether awarded
by the Collector or the court accrue on the
respective dates on which the award or the decree
is passed. Income-tax is not levied on a mere
right to receive compensation; there must be
something tangible, something in the nature of a
debt,
395
something in the nature of an obligation to pay an
ascertained amount. Till such time, no income can
be said to have accrued ...................... On
the date when the Collector awarded the
compensation, it is only that amount which had
accrued or deemed to accrue, whether in fact paid
or not. But by no stretch of the words in section
4(1)(b)(i), could it be said that the right to
enhanced compensation, which has not yet been
accepted by the proper forum, namely, the court,
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has become payable on the date when the original
compensation become payable, for being included in
that year of assessment. The enhanced compensation
accrues only when it becomes payable, i.e., when
the court accepts the claim. As has been stated
earlier, a mere claim by the assessee, after
taking of possession of the land, at a particular
rate or for a certain sum is not compensation. It
must not be forgotten that, even if a court was
awarded enhanced compensation, there is a right of
appeal by the Government to the High Court, and
the High Court may either disallow that claim or
reduce the compensation. As against that judgment,
there is further right of appeal to the Supreme
Court. The assessee also can appeal against the
insufficiency of the enhanced compensation. Can it
be said that the final determination by the
highest court of the compensation would entitle
the Income-tax Officer, notwithstanding the period
of limitation fixed under the Income-tax Act, to
reopen the assessment in which he had included the
initial compensation awarded by the Collector and
recompute the entire income on the basis of the
final compensation? We do not think there can be
any justification for such a proposition. On a
proper construction of the terms ’accrue’ or
’arise’, we are of the view that such an
interpretation cannot be placed. The
interpretation given by us does not affect the
interests of the revenue. At the same time, it
safeguards the assessee and prevents harassment.
To hold otherwise would be contrary to the
provisions of law."
The legal position was explained in further detail by the
Gujarat High Court in Topandas Kundanmal v. Commissioner of
Income-tax, Gujarat, [1978] 114 ITR 237. The High Court was
called upon to decide without the right to receive the
enhanced compensation under the Land Acquisition Act accrued
or arose to the assessee when he sought
396
a reference under s. 18 of the Act or when the award was
made by the Civil Judge although an appeal was pending
against that award. The learned Judges referred to the
nature of an award made by the Collector, and adverting to
the opinion of this Court in Harish Chandra Raj Singh v. The
Deputy Land Acquisition Officer & Anr., [1962] 1 SCR 676
that the award made by the Collector was merely an offer or
tender of the compensation determined by the Collector to
the onwer of the property on the acquisition, the High Court
observed:
"...the legal position which emerges is that there
is no liability in praesenti to pay an enhanced
compensation till it is judicially determined by
the final court since the entire question, namely,
whether the offer made by the Land Acquisition
Officer is inadequate and the claimant is entitled
to an additional compensation and if yes, at what
rate is in flux till the question is set at rest
finally, we do not think that any enforceable
right to a particular amount of compensation
arises. The offer made by Land Acquisition
Officer, by his award, if not accepted by a
claimant would not result automatically in a
liability to pay additional compensation as
claimed by party aggrieved. There is no doubt a
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liability to pay compensation as offered by the
Land Acquisition Officer. But that is far from
saying that liability is a liability to pay
additional compensation or enhanced compensation
as claimed by a party aggrieved. If there is an
existing liability, the mere fact that the payment
is postponed to the future would not detract that
liability from becoming a debt but the liability
to pay unliquidated damages or additional
compensation which are inchoate or contingent
would not create a debt."
Khan Bahadur Ahmed Alladin & Sons (supra) and Topandas
Kundanmal (supra) were relied on by the Gujarat High Court
in Additional Commissioner of Income-tax, Gujarat v. New
Jehangir Vakil Mills Co. Ltd., [1979] 117 I.T.R. 849 for
reaffirming that it was on the final determination of the
amount of compensation that the right to such income in the
nature of compensation would arise or accrue and till then
there was no liability in praesenti in respect of the
additional amount of compensation claimed by the owner of
the land.
It is unnecessary to refer to all the cases cited
before us. It is sufficient to point out that there is a
clear distinction between cases
397
such as the present one, where the right to receive payment
is in dispute and it is not a question of merely quantifying
the amount to be received, and cases where the right to
receive payment is admitted and the quantification only of
the amount payable is left to be determined in accordance
with settled or accepted principles. We are of opinion that
the High Court is right in the view taken by it and,
therefore, this appeal must be dismissed.
The appeal is dismissed. There is no order as to costs.
P.S.S. Appeal dismissed.
398