9911796707
TMI Blog2024 (5) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... for the transfer of such immovable property. Now testing the facts of the present case in the touchstone of the pre-conditions contemplated in the 1st proviso and 2nd proviso to Section 56(2)(vii)(b) of the Act, we find that the same are found to be duly satisfied. As is discernible from the records, we find that the assessee had vide a registered purchase deed acquired the title of a plot admeasuring 4000 sq. ft. in Danish Kunj Society from Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal for a consideration of Rs. 1,05,332/- on 02.03.2017. Originally an agreement to purchase the aforesaid plot was executed between the father of the assessee, viz. Late Shri Sundar Lal Gupta and Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal in the year 1991 for a consideration of Rs. 92,000/-(including development charges). The assessee was a nominee of the aforesaid purchase transaction. On a perusal of the purchase deed, it transpires that the same therein mentions that the subject plot No. DK-5/3 admeasuring 4000 sq. ft. (50 * 80) was allotted to a member having membership No.3128, which conforms with the details provided in the allotment certificate issued by the society to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no evidence with the A.O. which would reveal that the investment made towards the purchase of the aforesaid plot was over and above the actual consideration that was paid by the assessee s father. Also, it is rightly observed by the CIT(Appeals) that as the difference between the stamp value of the subject property and the actual purchase consideration is only the deemed/notional income, therefore, the same could not have been brought with the meaning of unexplained investment u/s. 69 of the Act. Thus, the Ground of appeal No.1 raised by the revenue is dismissed in terms of our aforesaid observations. CIT(Appeals) had admitted additional evidence in violation of the procedure contemplated in Rule 46A(3) of the Appellate Tribunal Rules, 1963 - We are unable to find favor with the same. On a perusal of the order of the CIT(Appeals) read along with the documents that have been pressed into service by him for vacating the addition made by the A.O, we find that the said documents as had been stated by the assessee in his paper book filed before us, i.e. Sr. No.1 to 10 were filed before the A.O. Nothing to the contrary has been brought to our notice by the Ld. D.R. Thus, the Ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the Act. Notice u/s. 148 of the Act, dated 28.03.2021 was issued to the assessee. It was observed by the A.O. that though it was stated in the notice u/s. 147 of the Act that the assessee had filed a return in response to notice u/s. 148 of the Act, but inadvertently/for any other reason, no return was found on the e-filing portal. 3. The A.O. during the course of the assessment proceedings, on a perusal of the submissions and documents filed by the assessee, observed that the assessee had purchased an immovable property for a consideration of Rs. 1,05,332/-, whereas its stamp value/segment rate as per registration deed was Rs. 1,11,52,200/-. The A.O. further observed that the assessee had paid registration charges of Rs. 89,218/- and a stamp duty of Rs. 9,47,937/- for the registration of the subject property. On being queried, it was submitted by the assessee that the subject property in "Danish Kunj Society" was purchased by his father Late Shri Sunder Lal Gupta, S/o Late Shri Ram Sharan Gupta on 27th June 1991 from Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal (MP) for a purchase consideration of Rs. 92,000/- (approx.). It was further submitted by him that the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y considered the order of the Assessing Officer, the submissions made by the appellant and the details filed. The appellant has filed a copy of the allotment certificate issued by M/s. Danish Housing Cooperative Society Limited, Bhopal dated 27.06.1991. This allotment certificate shows that the appellant's father Shri Sundar Lal Gupta is a member of the said society with membership number 3128 and is allotted a plot of size 50 x 80 equal to 4000 Sq. Ft. for a total cost including development charges of Rs. 92,000. The appellant has also filed copies of receipts issued by M/s. Danish Housing Co-operative Society Limited, Bhopal for the receipt of payments through cheque amounting to Rs. 58000 and Rs. 25,400. It is clear from the above that the plot measuring 4000 Sq. Ft. has been allotted by M/s. Danish Housing Co-operative Society Limited, Bhopal to Shri Sundar Lal Gupta, the father of the appellant. It is also apparent from the details filed that out of the total consideration fixed of Rs. 92,000, an amount of Rs. 83,400 has been paid by cheque/draft on 27.06.1991 and 12.09.1992 respectively. It is submitted by the appellant that his father Shri Sundar Lal Gupta expired before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Value. In such circumstances, the Assessing Officer shall assess the difference between the Stamp Duty Value and the actual consideration as Income from Other Sources. Duly following this provisions of the Income-tax Act, the AO has brought to tax an amount of Rs. 1,10,46,868 being the difference between the actual consideration and the Stamp Duty Value of the immovable property. 5.7. However, the appellant has rightly brought to my attention the provisos under the section 56(2)(vii)(b) which act as exceptions to this main provision. It covers situations where the date of agreement fixing the consideration and the date of registration of the property are not the same. In such a case, the Stamp Duty Value on the date of agreement shall be taken for the purpose of application of Section 56(2)(vii)(b), subject to the condition that the whole or a part of the consideration has been made in a mode other than cash on or before the date of agreement for the transfer of immovable property. In the appellant's case, it has been agreed by the parties to the contract of sale namely M/s. Danish Housing Co-operative Society Limited, Bhopal and the appellant's father Shri Sundar Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject property prescribed by the Stamp Valuation authority and the disclosed purchase consideration paid by the assessee. It was also stated by the Ld. DR that the CIT(Appeals) had most arbitrarily admitted and considered the additional evidence that was filed by the assessee before him, i.e. form of acquisition of property by the assessee's father without confronting the said material and calling for the objections of the A.O. It was, thus, submitted by the Ld. DR that the order of the CIT(Appeals) in all fairness be set aside and that of the A.O be restored. 9. Shri Bikram Jain, Ld. Authorized Representative (for short 'AR') for the assessee at the threshold relied on the order of the CIT(Appeals). The Ld. A.R submitted that the subject property was allotted to the assessee's father in FY 1991- 92 and all the payments towards purchase consideration were made before A.Y. 1992-93. Elaborating further, the Ld. A.R. submitted that due to the sudden demise of the assessee's father, the property was registered in the name of the nominee, i.e. the assessee in A.Y. 2017-18. Also, it was submitted by the Ld. AR that as the provisions of Section 56(2)(vii)(b) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f acquisition, and further the year of purchase as 1991-92, which had been accepted by the department. The Ld. AR in support of his aforesaid contention had drawn our attention to the copy of the return of income and computation of income of both the assessee and his wife, Pages 79- 91 of APB. 11. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 12. As observed by us hereinabove, the A.O in the present case had made an addition of Rs. 1,10,46,868/-, i.e. difference between the consideration, for which, the assessee had purchased the subject property as against that adopted by the stamp valuation authority as on the date of execution of the registered deed, dated 02.03.2017. The A.O. had made the aforesaid addition under two sections, i.e. Section 56(2)(vii)(b) of the Act AND Section 69 of the Act. We find that the CIT(Appeals) had found favor with the contentions of the assessee that addition under neither of the aforesaid statutory provisions was called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd proviso". The "2nd proviso" to Section 56(2)(vii)(b) of the Act, contemplates that the "1st proviso" shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property. 14. Now testing the facts of the present case in the touchstone of the pre-conditions contemplated in the "1st proviso" and "2nd proviso" to Section 56(2)(vii)(b) of the Act, we find that the same are found to be duly satisfied. As is discernible from the records, we find that the assessee had vide a registered purchase deed acquired the title of a plot admeasuring 4000 sq. ft. in "Danish Kunj Society" from Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal for a consideration of Rs. 1,05,332/- on 02.03.2017. Originally an "agreement to purchase" the aforesaid plot was executed between the father of the assessee, viz. Late Shri Sundar Lal Gupta and Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal in the year 1991 for a consideration of Rs. 92,000/-(including development charges). The assessee was a nominee of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including development charges), which was paid vide cheques/drafts by the assessee's father over the period 27.06.1991 to 12.09.1992, therefore, the case of the assessee would fall within the exception carved out to the application of the aforesaid Section 56(2)(vii)(b) of the Act, i.e. as contemplated in the "1st proviso" and "2nd proviso" of the said statutory provision. We, thus, finding no infirmity in the view taken by the CIT(Appeals), uphold the same. 15. Although the Ld. AR has raised an alternative contention, that as Section 56(2)(vii)(b) of the Act has been made available on the statute only vide the Finance Act, 2010 with retrospective effect from 01.10.2009 and thus, was not available on the statute when the "agreement to purchase" the subject property was executed between the assessee's father and the aforementioned society, i.e. in the year 1991, therefore, the said statutory provision on the said count itself could not have been triggered, but we refrain from dealing with the same. We say so, for the reason that as it is the appeal of the revenue before us, therefore, the aforesaid claim of the Ld. AR does not emanate from the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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