2021 (12) TMI 308 - AT - Income Tax

Addition u/s 56(2)(vii)(b)(ii) - FMV of property - Mandation of reference to the valuation officer as was required per the mandate of Sec. 50C(2) - adoption by the A.O of the value that was taken by the Stamp Valuation Authority for valuing the property in question - Assessee submitted that amount for which the property in question had been transacted as per the agreement be accepted without any reference to its market value as was adopted by the Stamp Valuation Authority - HELD THAT - We are unable to persuade ourselves to substantiate to the claim of the assessee that as the property under construction was an under construction flat which pursuant to the fraud played by the builder had not been received by him till date; and the matter is sub-judice before the courts, therefore, the provisions of Sec. 56(2)(vii)(b) would not be applicable qua the transaction in question. Considering the definition of transfer as contemplated in Sec. 2(47) of the Act, we are of the considered view that pursuant to the execution of the registered agreement to sell dated 11/15.10.2013 between the assessee and the seller i.e the builder, viz. M/s Lok Housing and Construction Ltd., the transfer of the property under consideration for the purpose of triggering the provisions of Sec.56(2)(vii)(b) stood completed. The events subsequent to the transaction of transfer of the immovable property under consideration will have no bearing on the applicability of the provisions of Sec.56(2)(vii)(b) - Accordingly, we reject the aforesaid claim of the assessee that the provisions of Sec.56(2)(vii) would not be applicable in its case - we are not inclined to accept the manner in which the A.O had made an addition in the hands of the assessee u/s 56(2)(vii)(b)(ii) of the Act i.e without making a reference to the valuation officer as was required per the mandate of Sec. 50C(2) of the Act, therefore, we herein set-aside the matter to the file of the A.O for fresh adjudication - Appeal filed by the assessee is allowed for statistical purposes.

Issues Involved:
1. Addition of Income under Section 56(2)(vii)(b)(ii) of the Income Tax Act, 1961.
2. Difference between Stamp Duty Value and Transaction Value of the property.
3. Consideration of valuation basis by the Stamp Duty Authority.
4. Allegations of lack of cash transactions and assumptions by the Assessing Officer.
5. Allegation of fraud by the developer.
6. Classification of under-construction flat as immovable property.
7. Non-referral to the DVO-Valuation Officer.
8. Nullity of the agreement due to the developer's fraud.

Detailed Analysis:

1. Addition of Income under Section 56(2)(vii)(b)(ii):
The core issue revolves around the addition made by the Assessing Officer (A.O) under Section 56(2)(vii)(b)(ii) of the Income Tax Act, 1961. The A.O observed that the transaction value of the property was significantly lower than the stamp duty value, leading to an addition of ?61,40,868/- to the assessee's income. The assessee contended that the property was in a slum area, thus justifying a lower transaction value. However, the A.O dismissed this claim and upheld the addition based on the stamp valuation authority's assessment.

2. Difference between Stamp Duty Value and Transaction Value:
The A.O noted that the transaction value of the property was ?1,27,22,500/- while the stamp duty value was ?1,88,63,368/-. The difference of ?61,40,868/- was added to the assessee's income under Section 56(2)(vii)(b)(ii). The assessee argued that the transaction value should be accepted as the fair market value (F.M.V) without reference to the stamp duty value, citing the property's location in a slum area.

3. Consideration of Valuation Basis by the Stamp Duty Authority:
The A.O justified the stamp duty value by referencing market rates from the website magicbricks, which showed rates in the locality ranging from ?20,000/- to ?25,000/- per sq. ft. The A.O concluded that the stamp duty value of ?19,856/- per sq. ft. was reasonable and in line with market rates. The assessee's objections were dismissed, and the addition was upheld.

4. Allegations of Lack of Cash Transactions and Assumptions:
The assessee claimed that there were no cash transactions or unaccounted cash during the year, and the A.O's addition was based on assumptions and presumptions. However, this argument was not given significant weight in the judgment.

5. Allegation of Fraud by the Developer:
The assessee alleged that the developer intended to commit fraud, rendering the transaction value irrelevant to the market or stamp duty value. The assessee argued that the agreement was null and void due to the developer's fraudulent intentions. However, the tribunal did not find this argument sufficient to negate the applicability of Section 56(2)(vii)(b)(ii).

6. Classification of Under-Construction Flat as Immovable Property:
The assessee argued that an under-construction flat should not be classified as immovable property for the purposes of Section 56(2)(vii)(b)(ii). The tribunal rejected this argument, stating that the execution of the registered agreement to sell constituted a transfer of property, thus triggering the provisions of Section 56(2)(vii)(b).

7. Non-Referral to the DVO-Valuation Officer:
The tribunal noted that the A.O failed to refer the valuation of the property to the DVO-Valuation Officer as required under Section 50C(2). The assessee had objected to the stamp duty value, necessitating a referral to the valuation officer. The tribunal found this omission to be against the mandate of law and set aside the matter for fresh adjudication by the A.O, instructing a referral to the valuation officer.

8. Nullity of the Agreement Due to Developer's Fraud:
The assessee claimed that the agreement was null and void due to the developer's fraudulent intentions and non-performance of the contract. The tribunal acknowledged the ongoing legal dispute but maintained that the registered agreement constituted a transfer of property, making Section 56(2)(vii)(b) applicable. However, the tribunal's decision to set aside the matter for fresh adjudication implicitly addresses this concern, as the valuation will be reassessed.

Conclusion:
The tribunal allowed the appeal for statistical purposes, setting aside the matter to the A.O for fresh adjudication, specifically instructing the A.O to refer the valuation to the DVO-Valuation Officer as per the mandate of Section 50C(2). The tribunal also provided that the A.O should afford a reasonable opportunity of being heard to the assessee during the set-aside proceedings.

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