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TMI Blog2024 (9) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee had filed application by post which is sufficient compliance of the Rule 4(1) of the I.T. Rules. The substantial justice is more important. Application of Section 56(2)(vii)(b) - The amendment is applicable to transactions undertaken after 01/10/2010. In this case the AO has admitted that entire payment was made by the assessee as purchaser to seller on or before 12/08/2008. The assessee has also filed copy of Agreement dated 20/08/2008 before us, however it is not clear whether the impugned agreement was filed before the AO or not. AO/DRP needs to analyze section 56(2)(vii)(b) proviso which states that where the date of agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not same, the stamp duty value on the date of the agreement may be taken for the purpose of this section. In this case, before us, assessee has also filed copy of agreement to purchase dated 20.08.2008(which is in hindi). AO has not discussed about this impugned agreement dated 20.08.2008 which does mention about the payments referred by the AO in the assessment order. Thus, in this case, apparently facts have not been properly analyzed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an option to file objections before Dispute Resolution Panel(DRP) within 30 days of receipt of the draft assessment order. It is mentioned in the final assessment order that assessee vide letter dated 19.04.2024 replied to the AO that assessee had filed appeal before the DRP and submitted copy of appeal having DRP stamp. However, AO passed a final assessment order u/sec. 147 r.w.s 144 of the Income Tax Act on 17.05.2024. In the final assessment order, in para 12 it is mentioned by the Assessing Officer that since assessee has not filed objections before DRP, the final assessment order is passed. Aggrieved by the final assessment order, assessee filed appeal before this Tribunal. 1.1 Grounds of appeal : 1. The Honourable DRP has allegedly rejected our objections/applications on the ground that the assessee has not filed application with DRP in person whereas the 4(1) of DRP Rules allows submission through AGENT and Post Office/Courier also works as agent of the assessee. Hence, the discrepancies raised by DRP on the basis of its own presumptions, surmises and conjectures should be quashed. 2. The Honourable DRP has allegedly rejected our objection on the ground that the Form 35A as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O never required the assessee to provide circle rates or tried himself to find out circle rate of Financial Year 2008-09 to determine the difference in the circle rate and actual purchase rate for the year 2008-2009 and proceeded to make additions in the Financial Year 2015-16 on the basis of his own presumptions, surmises and conjectures. Thus, Ld. A.O. erred in both facts and law by invoking section 50C on the basis of registry and treating income from other source under section 56(2)(vii)(b) on the basis of his own presumptions, surmises and conjectures. 11. Ld. AO never gave any reason as to why income is being added in Financial Year 2015-16 instead of Financial Year 2008-09, in spite of the fact that no financial transactions took place in Financial Year 2015-16 with respect to subject flats and proceeded to make additions in the Financial Year 2015- 16 on the basis of his own presumptions, surmises and conjectures. Hence addition is liable to be deleted. 12. Ld. A.O. erred in both facts and law in assuming jurisdiction u/s 147 of the Act is bad in law since the alleged income escaping assessment had been arrived at Rs. 24,36,000 by invoking section 50C being time barred as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act, 1963, Assessee s application was within time. Therefore, we are of the considered opinion that DRP has erred in rejecting assessee s application on the ground of limitation. 4.4 DRP has also mentioned following reasons for rejection of the application : 1) The application is not filed with DRP in person as per Rule 4(1) of the I.T.Rule. 2) Form No.35A, as prescribed, is not filed in quadruplicate. 3) Certified Draft Assessment Order is not attached (in quadrapulate). 4) The application is received on 15.04.2024 which is beyond the time limit prescribed u/s 144C(2) of the I.T.Act, 1961. 4.5 The DRP alleges that assessee had not submitted certified copy of the assessment order, Form No.35A was not filed in quadruplicate. These are the defects in appeal application. For this, DRP should have issued a defect memo. DRP has become hyper-technical. Assessee had filed application by post which is sufficient compliance of the Rule 4(1) of the I.T. Rules. The substantial justice is more important. 4.6 In this case, the AO has invoked provisions of section 56(2)(vii)(b) of the Act, which came into effect from 01.10.2009. However, in the assessment order, in para 4 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that where the date of agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not same, the stamp duty value on the date of the agreement may be taken for the purpose of this section. In this case, before us, assessee has also filed copy of agreement to purchase dated 20.08.2008(which is in hindi). The AO has not discussed about this impugned agreement dated 20.08.2008 which does mention about the payments referred by the AO in the assessment order. 4.12 Thus, in this case, apparently facts have not been properly analyzed by the AO. We have already mentioned that AO has nowhere mentioned Date of Registration, which is crucial as the Section 56(2)(vii)(b) came into effect from 01/10/2009 and assessee claimed that there is an agreement dated 20.08.2008. 4.13 We have already mentioned about that Dispute Resolution Panel has rejected assessee s application erroneously, though assessee had filed application within the time. 4.14 In view of the above, we set-aside the order of the DRP to the DRP for de-novo adjudication. DRP shall provide opportunity of hearing to the assessee. Assessee shall file all necessary document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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