9911796707
TMI Blog2021 (1) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee. No hesitation to hold that provisions of Section 56(2)(vii)(b) of the Act could not be made applicable in the hands of the assessee for the assessment year under appeal in the peculiar facts and circumstances of the case before us. Accordingly, the ground Nos. 1 2 raised by the assessee are allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Builder) for flats at ground height building, near new link road, Lokhandwala, Andheri (W), Mumbai - 400 053. It was also submitted that originally the assessee proposed to buy flat Nos.1101 and 1102 in the same property which was later changed to flat Nos. 702 & 703 as per the letter submitted by M/s. Perfect Construction dated 17/12/2016. The assessee had submitted stamped receipts for first payment made to M/s. Perfect Construction for flat No.1101 dated 05/02/2008 and flat No.1102 dated 24/03/2007 for ₹ 10,04,128/- and ₹ 2,63,808/- respectively. The ld. AO issued summons u/s.131 of the Act dated 15/12/2016 to M/s. Perfect Constructions (builder) to produce copy of agreement for flat No.1101 and 1102. M/s. Perfect Construction (builder) vide their reply dated 17/12/2016 did not submit copy of the agreement but stated that in F.Y.2007-08, the assessee had shown his interest in booking Flat No.1101 and 1102 which was later changed to Flat No.702 & 703 respectively. The ld. AO again issued one more summon u/s.131 of the Act to M/s. Perfect Constructions on 26/12/2016 to produce the receipt of payments against the flats, copy of registration and allotment letter. 3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder's authorised representative. Accordingly, the assessee pleaded that this letter from the authorised representative of the builder had not been taken due cognizance by the ld. AO while framing the assessment. 4.1. The assessee pleaded that since the provision to purchase the flats being flat Nos.1101 & 1102 were made way back in the year 2007-08 respectively, for which advance payment was indeed made by the assessee by way of booking advance, which is also supported by a stamp receipt from the side of the builder together with letter of allotment given by the builder to the assessee. The said allotment letter duly comprised of the extent of the property that was proposed to be built and the date of possession to be handed over to the assessee in respect of each of the flats. It was submitted that only the flat numbers were changed by the assessee i.e. instead of proceeding with flat Nos.1101 and 1102, the assessee proceeded with flat Nos.702 & 703 in the very same building, for which the payments already made by the assessee for flat Nos.1101 & 1102 were sought to be adjusted by the builder, for which a separate letter of allotment was given by the builder in January 2012 clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 categorically submitting that these evidences submitted by the assessee should not be appreciated at all as sufficient opportunities were given to the assessee as well as to the builder during the course of assessment proceedings itself and the ld. AO sticked on to the old addition made in the assessment. In rejoinder, the assessee stated before the ld. CIT(A) that it had not filed any additional evidences before the ld. CIT(A) and submitted that what assessee had pleaded before the ld. CIT(A) was only proper appreciation of facts and confirmation given by the builder directly to the ld. AO at the time of the assessment proceedings. Hence, the entire contentions of the ld. AO in the remand report are factually incorrect. Accordingly, assessee pleaded that no fault could be attributed on his part for non-consideration of the replies given by the builder directly to the ld. AO. It was pleaded by the assessee before the ld. CIT(A) in his rejoinder to the remand report that except reproducing the provisions of Section 56(2)(vii)(b) of the Act, the ld. AO in his remand report had not uttered anything regarding the detailed written submissions filed by the assessee vide letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered as the date of purchase of flat. (d) Flat No. Market value in F.Y.2007-08 based on the allotment letter given by the builder (In Rupees) Actual consideration as per the registered document (In Rupees) Difference (In Rupees) 702 44,67,090/- 42,99,600/- 1,67,490/- 703 85,39,230/- 80,00,000/- 5,39,230/- Total 7,06,720/- 4.4. With regard to the Co-ordinate Bench decision of this Tribunal in the case of John Flower (India) Pvt. Ltd., relied upon by the assessee before the ld. CIT(A) that the average variation is only 5% between the stamp duty value and the actual consideration and no addition need to be made, is concerned, the ld. CIT(A) observed that the said decision was rendered by Mumbai Tribunal in the context of Section 50C of the Act and not in the context of Section 56(2)(vii)(b) of the Act and hence, he directed the ld. AO to restrict the addition only to the extent of ₹ 7,06,720/-. 5. Aggrieved by the aforesaid action of the ld. CIT(A), we find only the assessee is in appeal before us and revenue had not preferred in appeal before us. 6. We find that the issue in dispute had been directly addressed by the Co-ordinate Bench decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such provision only where there is a total lack of consideration and does not cover a case of inadequacy in purchase consideration. 7. We find merit in such plea advanced on behalf of the assessee. It is not in dispute that purchase transactions of immovable property were carried out in FY 2011-12 for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee." 6.1. We find that this Ranchi Tribunal's decision was confronted with the ld. DR, he could not rebut the same and could not provide any other contrary decision before us at the time of hearing. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
