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TMI Blog2021 (12) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... s 263 of the Act by ld. PCIT and restore the order of AO. The appeal of the assessee is allowed. - ITA No.843/M/2021 - - - Dated:- 22-11-2021 - Shri Rajesh Kumar, Accountant Member And Shri Amarjit Singh, Judicial Member For the Assessee : Shri Neelkanth Khandelwal, A.R. For the Revenue : Shri Nikhil Chaudhary, D.R. ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER: The present appeal has been preferred by the assessee against the order dated 31.03.2021 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2015-16. 2. The only issue raised in the various grounds of appeal is against the exercise of revisionary jurisdiction by PCIT u/s 263 of the Act on the ground that the assessment framed u/s 143(3) of the Act is erroneous and prejudicial to the interest of the revenue as the AO has not examined the issue of sale of flat at a price lower than stamp value. 3. The facts in brief are that the assessment was framed u/s 143(3) of the Act vide order dated 29.12.2017 at ₹ 33,12,570 after making an addition of ₹ 22,12,000/- by disallowing long term capital gain. The ld PCIT on examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting that on the date of registered agreement, the stamp value of the flat was ₹ 1,39,38,500/- whereas the assesse has bought the said flat for a consideration of ₹ 67,50,000/- and therefore the difference needs to be added to the income of the assesse u/s 56(2)(vii)(b) of the Act and therefore ld PCIT was rightly revised the assessment. The ld DR submitted that in views of these facts the appeal of the assesse may kindly be dismissed. 6. We have heard the rival contentions and perused the material on records. The only issue on which the jurisdiction u/s 263 was invoked was that the assesse purchased a flat vide registration deed dated 10.02.2014 for ₹ 67,50,000/- whereas the stamp value of the same was ₹ 1,39,38,500/-. We note that the assesse was allotted flat vide allotment letter dated 25.02.2010 and assesse has paid entire consideration of ₹ 67,50,000/- by 30.06.2010. The flat was registered on 10.12.2014. In our opinion the date of purchase is the date when the allotment letter was issued to the assessee and not the date of registered agreement. The case of the assessee is squarely covered by the decision of the coordinate bench in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f allotment on 11.11.2009 as is apparent from the allotment letter signed by the assessee as a token of acceptance. It is also undisputed that prior to the registration of the transaction on 09.12.2014, the assessee had paid ₹ 45,26,233/- against the total agreed sale consideration of ₹ 65,57,500/-. A perusal of the allotment letter clearly shows that it contains all the substantive terms and conditions which create the respective rights and obligations of the parties i.e. the buyer (assessee) and the seller (the builder) and bind the respective parties. The allotment letter provided detailed specification of the property, its identification and terms of the payment, providing possession of the subjected property in the stipulated period and many more. Evidently the seller (builder) has agreed to sale and the allottee buyer (assessee) has agreed to purchase the flat for an agreed price mentioned in the allotment letter. What is important is to gather the intention of the parties and not to go by the nomenclature. Thus, there being offer and acceptance by the competent parties for a lawful purpose with their free consent, we find that all the attributes of a lawful agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential property, entered into an agreement with a builder within prescribed period of two years for purchase of flat payment of which was linked to stage of construction, assessee's claim for deduction under section 54 was to be allowed - Held, yes [In favour of assessee] In the lights of the above decision and on the appreciation of the facts and the evidences available on material, we are convinced that the parties had already entered into an agreement by way of the allotment letter in on 11.11.2009 falling in A.Y. 2010-11. 8. Now we come to the provisions of S. 56(2)(vii), which stood prior to the amendment. ((b) any immovable property,- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; The Finance Act, 2013 inserted clause (ii) in S. 56(2)(vii)(b) reading as under: (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration The pre amended law evidently did not cover a situation where an immovable property was received by an individual or H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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