9911796707
TMI Blog2022 (11) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... may enable use or enjoyment of property and it appears that having regards to description context and objective, acquisition of such rights cannot be equated with immovable property. As relying on Bhavna Shashikant Ghone [ 2022 (9) TMI 919 - ITAT PUNE ] we are of the view that Section 56(2)((vii)(b) cannot be applied in assessee s case. It is also noteworthy to mention that letter dated 6-01-2014 issued by RIICO in favour of M/s. Unique Impex is clear evidence that the assessee only received lease hold right for 99 years . Hence, in view of above deliberations and the case laws mentioned hereinabove, the Bench does not concur with the view of the ld. CIT(A) and the addition sustained by the ld. CIT(A) is directed to be deleted. Thus the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year under consideration noticed that the assessee had purchased plot situated at G1-14(A), EPIP, Sitapura, Jaipur for a consideration of Rs.97.00 lacs. However, the stamp duty value of such lease hold rights of plot situated at G1-14(A), EPIP, Sitapura, Jaipur as adopted by Sub- Registrar, Jaipur-VI amounted to Rs.1,23,10,078/-. Therefore, vide note sheet entry dated 15-09-2017, the AO show caused the assessee as to why difference of Rs.26,10,078/- should not be added back to the total income of the assessee u/s 56(2)(vii)(b) of the Act for which the ld. AR of the assessee submitted the detailed reply before the AO mentioning therein that 5. As section 56(2)(vii)(b) applies only to a immovable property, being land or building or both, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total income of the assessee. 2.2 In first appeal, the ld. CIT(A) confirmed the action of the AO by observing as under:- 2.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. On perusal of overall facts, it is seen that during the year under consideration, assessee purchased a plot measuring 1180 Sq.mtr alongwith building with covered area of 6858.42 sq.ft. for Rs. 97,00,000/-. However, stamp authority took value of this land at Rs. 1,23,10,078/- for stamp duty purpose. The Assessing Officer treated the difference as income under section 56(2)(vii)(b) for Rs. 26,10,078/- 2.3.1 Ld. Authorized Representative argued that section 56(2)(vii)(b) is deeming fiction applicable only with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee reiterated the same arguments as were raised by him before the ld. CIT(A). 2.4 On the contrary, the ld. DR supported the orders of the authorities below. 2.5 The Bench has heard both the parties and perused the materials available on record. Brief facts of the case are that the assessee is engaged in the business of trading of Gold Bullions. During the year under consideration, the assessee has filed his return of income on 29-11-2014 declaring total income at Rs.16,79,410/-. It is noted that the assessee had entered into the sale agreement dated 08.10.2013 with M/s Unique Impex (hereinafter referred to as seller) of the industrial plot [admeasuring 1180 sq. meters] alongwith the building thereon [admeasuring 6858.42 sq. feets] s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - u/s 56(2)(vii)(b) of the Act. The ld. CIT(A) also confirmed the action of the AO. The ld. AR of the assessee prayed that AO and ld. CIT(A) grossly erred in invoking the provision of 56(2)(vii)(b) of the Act. He submitted that section 56(2)(vi)(b) is deeming fiction and it is settled preposition that deeming provision cannot be extended beyond the purposed for which it is enacted and section 56(2)(vii)(b) applies only in the cases of transfer of Immovable property takes place but not where the transfer of rights in the immovable property takes place. The definition of property does not refer to rights or transactions which may enable use or enjoyment of property and it appears that having regards to description context and objective, acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be. We adopt the very reasoning herein as well to conclude that the learned lower authorities have erred in law and on facts in invoking section 56(2)((vii)(b) addition qua assessee s acquisition of leasehold rights in issue. The impugned addition stands deleted in above terms, Ordered accordingly. 5. This assessee s appeal is allowed in above terms. In view of the decision of Coordinate Bench of ITAT Pune in the case of Bhavna Shashikant Ghone, we are of the view that Section 56(2)((vii)(b) cannot be applied in assessee s case. It is also noteworthy to mention that letter dated 6-01-2014 issued by RIICO in favour of M/s. Unique Impex is clear evidence that the assessee only received lease hold right for 99 years . Hence, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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