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TMI Blog2023 (5) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate showing stamp duty ready reckoner value as on the date of booking of flat and Since the stamp value as on 05.06.2012 was less than the agreement value addition made by the AO invoking the provisions of Section 56(2)(vii)(b) of the Act cannot be sustained . Accordingly, the addition made by the Assessing Officer vide Final Assessment Order is deleted - Decided in favour of assessee. - SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER For the Appellant : Shri Rajesh Athwale For the Respondent : Shri Soumendu Kumar Dash ORDER Per Rahul Chaudhary, Judicial Member: 1. The present appeal is directed against the Assessment Order dated, 24.01.2023, passed under Section 147 read with Section 144C(13) of the Income Tax Act, 1961 [hereinafter referred to as the Act ], as per directions, dated 20.12.2022, issued by the CIT (DRP-2), Mumbai-2 (hereinafter referred to as the DRP ) under Section 144C(5) of the Act pertaining to the Assessment Years 2016-17. 2. The Grounds of Appeal raised by the Assessee are as under: 1. The learned ITO erred in determining the income of the Appellant at INR 56,46,140/- against the returned income of INR 58,940/-. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of the Act. However, the Assessing Officer was not convinced with the submissions/explanations furnished by the Appellant, and therefore, the Assessing Officer proposed addition of INR 55,87,200/- under Section 56(2)(vii)(b) of the Act by way of Draft Assessment Order, dated 31.03.2022, passed under Section 147 read with Section 144 of the Act. 4. The Appellant filed objections against the above Draft Assessment Order before the DRP. After taking into account the submissions of the Appellant, the DRP disposed the objections by issuing directions, dated 20.12.2022, the relevant extract of which reads as under: 7.1. We have carefully considered the rival contentions. The facts are not being repeated here for the sake of brevity. The brief point of dispute is that the assessee says that the above flat was booked on 5/6/12 only, as a payment of cheque of Rs 40,40,406/- was made on this date to the builder. So, the stamp value of the property should be taken with reference to this date, rather than the date of registration of purchase, which is, of course, on a later date, as a registration shall take place only after all the installments have been paid. The assessee further says th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to these remarks. 8. The assessing officer is directed to give effect to the aforesaid directions in terms of the provisions of Section 144C(13) of the Act. (Emphasis Supplied) 5. Sequent to the above directions dated 20.12.2022 issued by the DRP, the Assessing Officer examined the 7th Scheduled to the Sale Deed and compared the same with the Annexure-B to the Allotment Letter dated, 08.03.2016, to arrive at a conclusion that the Appellant was required to pay INR 1,23,19,140/- at the time of booking whereas the Appellant had only paid an amount of INR.40,40,406/- by way of cheque dated 01.06.2012. Therefore, since the precondition to booking the immovable property was not fulfilled, the date of booking of property (i.e. 05.06.2012) cannot be treated as date of agreement. He further submitted that even the allotment letter was issued to the Appellant on 08.03.2016. The Assessing Officer was of the view that the stamp duty as on the date of the registration of Agreement for Sale, (i.e. 09.03.2016) should be adopted while applying provisions of Section 56(2)(vii)(b) of the Act. Accordingly, the Assessing Officer made an addition of INR 55,87,200/- under Section 56(2)(vii)(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the relevant previous year. Therefore, the Assessing Officer was justified in adopting the stamp value as on the date of agreement for sale (i.e. 09.03.2016) while invoking provisions of Section 56(2)(vii)(b) of the Act and making an addition of INR 55,87,200/- under the head Income from Other Sources . 9. We have considered the rival submissions and perused the material on record. It is admitted position that the Appellant had applied for immovable property on 05.06.2012. The Appellant had placed a copy of Booking Form at Page 2 of the paper-book which specifies that payment of INR 40,40,406/- vide cheque, dated 01.06.2012, drawn on Bank of India, Branch Mumbai was made by the Appellant towards booking of the aforesaid immovable property. While the Revenue admits to the aforesaid payment having been made, it contends that since the entire booking amount was not paid there was no agreement fixing the consideration for transfer of immovable property. We are not inclined to accept the aforesaid contention. We note that the developer/seller has accepted the receipt of the following payments from the Appellant: Date Cheque No. Name of the Bank Amount (INR) 01.06.2012 000005 Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
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