2023 (3) TMI 476 - AT - Income Tax

Addition made by enhancing the sale consideration of the property sold - determination of value of sale consideration for the purpose of capital gains u/s 50C - CIT(A) confirming 10% of the total addition made by the Ld. AO in respect of sale of flats and the addition in respect of Commercial space has also been confirmed to 10% instead of 20% - HELD THAT - As in the present case, since, the assessee has taken the sale consideration at a higher value than the price fixed as per the Stamp Duty Act and hence, the AO arbitrarily enhancement of the sale consideration without any basis is unwarranted and against the mandate. CIT(A) has misinterpreted the provision of section 50C, that there is no restriction on adopting a higher value than the stamp duty valuation, even there was no direct evidence or proof of the same on record, taking shelter of the circumstantial evidence in the shape of higher price for similar size flat at same floor and same locations/situations and that such things (i.e. the cash payment) were involved in this case merely on presumption and conjectures without bringing corroborative material documantary evidence on record to rebuttal of the submissions of the assessee appellant. Merely, estimating the income even without quoting a specific instance of circumstantial evidence, partly confirming the addition to meet the ends of justice in this case by restricting addition to 10% as against 20% of the total addition made by the AO in respect of sale of flats in respect of commercial space is held to be perverse to the fact on record. Neither the AO nor the Ld. CIT(A) have brought on record any direct evidence to prove that extra consideration has been received by the appellant over and above the consideration as per sale agreement. CIT(A) failed to rebut the contention of the Ld. AR on the issue of determination of value of sale consideration for the purpose of capital gains u/s 50C of the Act. Therefore, the addition made on the basis of presumption, assumption and conjecture would not be sustained under the law. We hold that the decision of the Ld. CIT(A) that the ends of justice would be made, if the addition in this case is restricted to 10% of the total addition made by the AO in respect of sale of flats and the addition in respect of commercial space is also restricted to 10% instead of 20% made by the AO is infirm and perverse to the facts on record and against the law. Accordingly, the estimated addition of Rs. 18,17,621/- in respect of flats, and Rs. 5,32,690/- respect of commercial space of Palm Island, (18,17,621/- 5,32,690/- 23,50,311/-) is deleted.

Summary

Issues Involved:
1. Confirmation of 10% of the addition made by the AO in respect of the sale of flats.
2. Confirmation of 10% instead of 20% addition made by the AO in respect of commercial space.

Detailed Analysis:

Issue 1: Confirmation of 10% of the Addition Made by the AO in Respect of the Sale of Flats

The assessee challenged the confirmation of 10% of the total addition made by the AO regarding the sale of flats. The AO had adopted the highest selling price shown by the assessee for similar flats, citing discrepancies in the sale prices of flats with similar dimensions and locations. The AO argued that the varied prices indicated possible suppression of actual values. The AO made the addition based on the highest per square feet value for similar flats, leading to a significant increase in the assessed income.

The assessee contended that the AO's addition was based on assumptions and without concrete evidence. The sale deeds were supported by valuation reports from a Registered Valuer for stamp duty purposes. The AR argued that the AO did not provide any evidence of extra consideration received over the declared amount. The AO's reliance on hypothetical higher sale prices was challenged as being without basis, especially since the sale prices were already aligned with the stamp duty valuations as per Section 50C of the Income Tax Act, 1961.

The CIT(A) partially upheld the AO's addition, reducing it to 10% of the total addition, acknowledging that some variation in flat prices is normal due to factors like location, floor, and amenities. However, the CIT(A) also noted the possibility of unrecorded cash payments, despite the lack of direct evidence.

The Tribunal found that neither the AO nor the CIT(A) provided direct evidence of extra consideration received. The addition based on assumptions and conjectures without corroborative evidence was deemed unsustainable. Consequently, the Tribunal deleted the estimated addition of Rs. 18,17,621/- in respect of the sale of flats.

Issue 2: Confirmation of 10% Instead of 20% Addition Made by the AO in Respect of Commercial Space

The assessee also contested the confirmation of 10% addition instead of the 20% made by the AO concerning commercial space. The AO had increased the value of commercial space by 20%, citing it as reasonable based on prevailing rates, without providing specific instances or evidence. The AR argued that the actual sale consideration was higher than the valuation determined by the Registered Valuer for stamp duty purposes, and the AO's arbitrary enhancement lacked basis.

The CIT(A) upheld 10% of the total addition, reasoning that some element of unrecorded cash payment might be involved, despite the lack of direct evidence. The Tribunal, however, found this approach flawed, as the CIT(A) misinterpreted Section 50C, which does not restrict adopting a higher value than the stamp duty valuation. The Tribunal concluded that the addition based on presumptions without concrete evidence was perverse to the facts on record.

The Tribunal deleted the estimated addition of Rs. 5,32,690/- in respect of the commercial space, holding that the AO's arbitrary enhancement was unwarranted.

Conclusion:

The Tribunal ruled that the additions made by the AO and partly upheld by the CIT(A) were based on assumptions, presumptions, and conjectures without direct evidence. The Tribunal deleted the total estimated addition of Rs. 23,50,311/- (Rs. 18,17,621/- for flats and Rs. 5,32,690/- for commercial space), concluding that such additions could not be sustained under the law. The appeals for all assessment years (2015-16 to 2017-18) were allowed, and the order was pronounced on 03.03.2023.