Bruhat Bangalore Mahanagar Palike vs. ITO (ITAT Bangalore)

The issue that arises for consideration is as to whether provisions of s.194LA of the Act are applicable to a case where (a) there was no compulsory acquisition; (b) there was no payment of any monetary consideration.

(i) The process of surrender of land for public purpose by owners of land and issue of CDRs has no element of “Compulsory Acquisition” which is necessary to attract application of the provisions of s.194LA of the Act. The meaning of the term “compulsory acquisition” is that land should be taken under statutory powers without the agreement of the owner. It is clear from material brought on record that the surrender of land by owners was voluntary and in exercise of option under a notification laying down conditions for grant of TDR in exercise of powers u/s14-B of KTCP. It is also clear that BBMP wherever owners did not respond to offer of CDRs, BBMP has resorted to compulsory acquisition proceedings in accordance with the provisions of the Land Acquisition Act, 1894. In the case of compulsory acquisition there are procedure for objecting to the acquisition on the ground that the proposed acquisition is not for public purpose, requirement of notice, determination of compensation, payment of compensation and thereafter taking possession and ownership. Such elements are absent when land owners surrender their land to BBMP under the scheme of issue of CDRs. It is also clear that there is no process of quantification or determination of value of land acquired when BBMP takes over land under the CDR scheme. Whenever BBMP does compulsory acquisition of land and pays compensation, it duly deducts tax at source as required u/s.194LA of the Act.

(ii) The provisions for deducting tax at source and paying it over to the Government on behalf of the recipient of the payment is in the nature of vicarious liability. The said liability can be easily and without any effort can be discharged when payment of compensation in a sum of money i.e., in the form of monetary compensation. At least in cases where the quantification of the sum of money takes place in terms of money but the payment or discharge of the liability is made by adjustment which is otherwise than by payment of monetary compensation, it can be said that there would still be a liability. But where neither there is quantification of the sum payable in terms of money nor actual payment in monetary terms, it would be unfair to burden a person with the obligation of deducting tax at source and exposing him the consequences of such default. The liability to pay tax is that of a third person and not that of BBMP and the spirit behind the provisions of Sec.190 of the Act has been totally lost sight of by the Revenue in the present case.

(iii) S.194LA of the Act would apply only when there is monetary payment. In this regard we find that provisions of Sec.194LA of the Act applies only when the person making payment should make payment of a “sum of money” which clearly indicates that the provisions of Sec.194LA of the Act are applicable only when payment is made in terms of money. The expression “any sum” used in Sec.194LA of the Act is a clear indication that those provisions are applicable only when payment is of consideration in terms of money. The Hon’ble Supreme Court had to interpret whether the expression “any sums paid by the Assessee in the previous year would also include donations in kind. S.194LA of the Act also uses the expression “any sum” which clearly indicates that it is only when payment is made in monetary terms that those provisions are attracted. The expression in S.194LA, “at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode” means that payment can be in the mode of giving cash, or by issuing cheque or draft or any other mode like telegraphic transfer or mail transfer, via money order or postal order, bill of exchange, promissory note, electronic transfer like RTGS, NEFT etc. DRCs cannot be brought within the meaning of the expression “by any other mode” used in Sec.194LA of the Act. The rule of “Ejusdem Generis” in interpretation of statutes, which lays down that where general words follow enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned is fully applicable to the interpretation of Sec.194LA of the Act. The general word in Sec.194LA of the Act is “payment of such sum” and the mode of payment qualified is cash, issue of cheque or draft or by any other mode. The expression any other mode has therefore to be confined only to payment of “any sum” in a mode other than cash, cheque or draft and not to a case where DRCs are issued. Even on this ground the order u/s.201(1) & 201(1A) of the Act deserves to be quashed and is hereby quashed.