This is a reference by the Income-tax Appellate Tribunal, Madras Bench, under section 66(1) of the Income-tax Act, 1922. The question referred is :
'Whether the sum of Rs. 16,477 received by the assessee as interest in terms of the order of the High Court in connection with the land acquisition proceedings is taxable under the Indian Income-tax Act ?'
An area of land belonging to the assessee was acquired by the State under the provisions of the Travancore Land Acquisition Act, 1089. The compensation awarded was enchanced first by the District Court and them by the High Court, and on the enhanced amount, interest was directed at 6 per cent. per annum from the date on which the assessee was dispossessed by the State. That interest, Rs. 16,477, is the interest specified in the question referred for decision.
The Travancore Land Acquisition Act, 1089, like the Indian Land Acquisition Act, 1894, contains two provisions regarding the grant of interest. They are section 25(3) corresponding to section 28 of the Indian Act and section 31 corresponding to section 34 of the Indian Act. The provision with which we are concerned is sub-section (3) of section 25 :
'If the sum which, in the opinion of the court, the Division Peishkar ought to have awarded as compensation is in excess of the sum which the Division Peishkar did award as compensation, the award of the court may direct that the Government shall pay interest on such excess at the rate of six per cent. per annum from the date on which the Division Peishkar took possession of the land to the date of payment of such excess in court.'
The real question for determination in a case of this type is whether the amount concerned is income or a capital sum estimated in terms of interest : Westminster Bank Ltd. v. Riches. If it is the former, it is liable to tax. If it is the latter, it is not.
The distinction between income and a capital sum estimated in terms of interest is a distinction of substance and not of mere name or form. A payment styled as interest or compensation may none the less be a capital sum estimated in terms of interest and thus outside the field of taxation.
What is income is not defined in the Indian Income-tax Act, 1922. It contents itself by dividing the concept into six heads or categories. One of them is the residual head or category 'income from other sources'. The contention of the department is that the amount concerned is liable to tax as an income under this head.
In Maharajkumar Gopal Saran Narain Singh v. Commissioner of Income-tax, the Board said that 'anything which can properly be described as income, is taxable under the Act unless expressly exempted'. The contention of the assessee is that the amount concerned cannot properly be described as income; that it is nothing else or other than a capital sum estimated in terms of interest.
In Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission the Board said that it is well established that on a contract for sale and purchase of land it is the practice to require the purchaser to pay interest on his purchase money from the date he took possession, that the position is the same when the acquisition is compulsory as the owner is deprived of his property in that case as much as in the other, and that 'the right to receive interest takes the place of the right to retain possession and is within the rule'. To the same effect is the case of Revenue Divisional Officer, Trichinopoly v. Venkatarama Ayyar. In that case the Government took urgent possession of certain lands before the award under the Indian Land Acquisition Act, 1894. The court said that even though the case did not exactly fall under sections 16 and 17 of the Act interest on the amount awarded can be given for the period between the date on which the Government took possession and the date on which the compensation money was paid on the principle that the right to receive interest takes the place of the right to retain possession.
Both these and other decisions were considered in Behari Lal Bhargava v. Commissioner of Income-tax. That court said :
'From these authorities it follows that interest awarded under section 28 of the Land Acquisition Act is in the nature of compensation for the loss of the late owners right to retain possession of the property acquired. In other words, it is damages assessed in terms of interest for loss of possession of property up to the date of receipt of its consideration.'
and that the interest is not assessable to income-tax. We are in entire agreement with this decision, and as all the aspects we want to emphasise are emphasised in the decision it is unnecessary to go over the ground afresh.
The decision is quoted with approval by Sanjiva Row, Aggarwala and Ramachandran in their commentaries to section 28 of the Indian Land Acquisition Act, 1894. Kanga in dealing with the case, however, has stated :
In Behari Lal Bhargava v. Commissioner of Income-tax interest awarded under section 34 of the Land Acquisition Act was held, it is submitted erroneously, to be not taxable as income. See the comment on this case in Commissioner of Income-tax v. Narayanan Chettiar and Commissioner of Income-tax v. Sir Kameshwar Singh : (Income-tax, fourth edition, volume 1, page 124).'
We have been taken through the two cases mentioned as supporting the comment; but are unable to hold on the reasoning adopted in those cases that the Allahabad decision has been erroneously decided.
In the light of what is stated above the question referred has to be answered in the negative and in favour of the assessee. We do so. The department will pay the costs of the assessee. Advocates fee Rs. 150.
A copy of this Judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (5) of section 66 of the Indian Income-tax Act, 1922.
Question answered in the negative.