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TMI Blog2023 (12) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... ? - HELD THAT:- We find that Co-ordinate Benches of Mumbai Tribunal in the case of Sulochana Saijan Modi [ 2023 (5) TMI 1099 - ITAT MUMBAI] while considering almost similar set of facts, wherein part payment of transaction was made by son of the assessee, who was joint holder of the property, the Tribunal accepted the submission for granting benefit of first and second proviso to Section 56(2)(x)(b) - We further find that in the present case, the part sale consideration was paid by Shri Umeshbhai P Patel, Sanjaybhai Tulshibhai Mangukiya and Karamshibhai Khimjibhai Mangukiya. We find that one of the assessee in these appeal that is Rajesh Bhai is the son of Parshottambhai C Patel. And Nayan Bhai is the cousin of Rajesh Bhai. Admittedly part consideration of the transaction was either paid by family members or by close relatives. Therefore, we are also of the considered view that while accepting returned income considered by Assessing Officer has not committed any error. Therefore, the assessment order cannot be branded as erroneous. Thus, twine condition, for invoking Section 263 of the Act are not met out in the present case. This ground of assessee s appeal is allowed. - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of personal hearing. 2. Facts in brief are that assessee is an individual, filed his return of income for the year under consideration assessment year 2018-19 on 31.10.2018 declaring total income at Rs. 40,35,400/-. The return of income was selected for limited scrutiny on the issue investment in immovable property . The Assessing Officer after seeking required certain details on the issue of issue of selection of scrutiny, from assessee and completed assessment under section 143(3) r.w.s. 143(3A) 143(3B) of the Act on 11.02.2021, in accepting returned income filed by assessee. Thereafter, the assessment order was revised by Ld. PCIT by invoking his jurisdiction power under section 263 of the Act vide his order dated 13.03.2023. 3. Before revising the assessment order, the Ld. PCIT on perusal of record noted that assessee along with other persons purchased immovable property admeasuring 16646 square meter on 07.03.2018 for a consideration of Rs. 7.63 crores. The Ld. PCIT further noted that assessee was having 7% share in the immovable property. The Stamp Valuation Authority valued the said immovable property at Rs. 19.48 crores thereby attracting provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when land was purchased by said nine co-owners, out of the purchased value of agricultural land cannot be one amount for some co-owners and other amount for some other co-owners. The assessee also explained the share of all the co-owners including four persons who were paid part of sale consideration by way of cheque at the time of entering into agreement to sale in the year 2010. The assessee further submitted that entire facts were examined by Assessing Officer at the time of assessment proceedings. The assessee also explained. Thus complete facts were examined by Assessing Officer and he chose not to make any addition to the returned income filed by the assessee. The assessment order was passed by Assessing Officer after examining the application of Section 56(2)(x) of the Act. The assessing officer, on verifying the details and understanding the fact that appreciated that there cannot be a difference, two value of one plot of agricultural land for two different set of co-owners. The Assessing Officer accepted returned income and chose not to make further any addition. The assessee vide reply dated 23.02.2023 submitted that 1 st and 2 nd proviso to Section 56(2)(x) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered together with the issue discussed by him by giving opportunity of being heard to assessee. Aggrieved by the order of Ld. PCIT passed on 13.03.2023 the assessee filed present appeal before the Tribunal. 6. We have heard the submission of Ld. Authorized Representative (Ld.AR) for the assessee and Ld. Commissioner of Income Tax Departmental-Representative (Ld. CIT-DR) for the Revenue. The Ld. AR for the assessee submits that assessee along with nine other co- owners who are closed family members and relative purchased agricultural land ad measuring 16646 on 07.03.2018 for a total sale consideration of Rs. 7.63 crores. The assessee is having 7% share in the said sale deed out of ten co-owners, four co-owners namely, Umeshbhai P Patel, Parshottambhai C Patel, Sanjaybhai Tulshibhai Mangukiya and Karamshibhai Khimjibhai Mangukiya who are jointly paid of aggregate amount of Rs. 35 lakhs to the seller at the time of execution of agreement by way of account payee cheque. Such fact is not disputed by Ld. PCIT. The Ld.PCIT revised the assessment order only by taking view that since the assessee was not the party to the original agreement and no payment / part payment at the time of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that while revising the assessment order clearly held that assessee was not a party to the agreement and no part of sale consideration was made by assessee prior to execute of sale deed. Therefore, assessee is not eligible for the benefit of first and second d proviso of Section 56(2)(x)(b) of the Act. The Ld. CIT-DR for the Revenue submits that Assessing Officer has not recorded anything in his assessment order and simply he recorded income of assessee that assessment of income is as per the computation sheet and there is no narration of examination of issue or application of mind that such issue in assessment order is erroneous and in so far as prejudicial to the interest of Revenue. 10. We have considered the rival submission of both the parties and perused the records carefully. We have also deliberated on various case law relied by Ld. AR for the assessee. We find that there is a limited controversy in the present appeal, that if a person who was not a party to the agreement to sale and has not paid any consideration or part consideration by way of cheque other than cash at the time of execution of such agreement can still be eligible for the benefit of first and secon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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