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TMI Blog2024 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... om other sources . Therefore, in view of the decision of the then Ld. CIT(A) in the case of the Assessee s daughter and the rule of consistency, the case of the Assessee is also liable to be allowed on same footing. Thus, AO is directed to consider the stamp duty value of the property as on 22.12.2014 as Rs. 1,88,00,000/- as valued by the Registered Valuer and the sale consideration of the property as Rs. 1,75,00,000/-as per the provisions of section 56(2)(x) of the Act and add 1/3 of the difference between the two values i.e. Rs. 13,00,000/- (Rs. 188,00,000/- - Rs. 1,75,00,000/-) in the hands of the Assessee under the head Income from other sources , as done by the then CIT(A) in the case of the Assessee s daughter. Consequently, the addition under consideration is modified accordingly. Appeal of the Assessee is partly allowed. - Shri Narender Kumar Choudhry, Judicial Member And Shri Ratnesh Nandan Sahay, Accountant Member For the Assessee : Shri Apurva Gandhi, A.R. For the Revenue : Shri Manoj Kumar Singh, Sr. A.R. ORDER PER: NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER: This appeal has been preferred by the Assessee against the order dated 15.05.2023, impugned herein, passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Vs, CIT (2014)365 ITR 389(SC) it is held that extinguishment of rights took place by this agreement only and not by the allotment letter and accordingly the transfer took place on 06.11.2019 only and not 22.12.2014. Secondly, the difference is of Rs. 1,01,29,333/3 which is more than 5% of the sales consideration, therefore section 56(2)(x) of the Act is attracted. Thirdly, even the first proviso to section 56(2)(x) of the Act should be applied, is accepted, even then it does not help the Assessee because of the fact that the letter of allotment does not qualify to be agreement and the agreement is the one of 06.11.2019. Fourthly, the date on which stamp duty value as well as market value to be taken is date of agreement i.e. 06.11.2019 and there is no variation between the values in this case, therefore the AO s not making reference to valuation officer, does not affect the assessment adversely. 6.1 We perused the letter of allotment dated 22.12.2014 issued by M/s. Spark Builders and Infra Project Ltd., wherefrom it appears that as per request of the assessee and his wife, flat No.1802 on 18th floor admeasuring 1317.62 sq. ft. carpet area in the building known as Desai Harmony w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xact terms and conditions for acquisition was executed. It was observed by the Hon'ble High Court, that the CBDT vide its Circular No. 471, dated 15.10.1996 had clarified that when an Assessee purchases a flat to be constructed by Delhi Development Authority (D.D.A) for which allotment letter is issued, date of such allotment would be the relevant date for the purpose of capital gain tax as the date of acquisition. Further, referring to the clarification issued by the CBDT, vide its Circular No. 672, dated 16.12.1993, it was observed by the Hon'ble High Court, that the Board had clarified that if the terms of the schemes of allotment and construction of flats/houses by the co-operative societies or other institutions were similar to the terms of allotment and construction by D.D.A, then on the same basis the acquisition of the property was to be related to the date on which the allotment letter was issued. On the basis of its aforesaid observations, the Hon'ble High Court had dismissed the appeal of the revenue. In the backdrop of our aforesaid deliberations, we are of the considered view that as no infirmity emerges from the order of the CIT(A), who we find had rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and execution of sale deed etc. are infact consequential acts in pursuance to allotment letter and/or originates from the date of allotment letter and therefore the same can be considered for determining the stamp duty value u/s 56(2)(x) as relevant. 6.5 Even otherwise, the then Ld. CIT(A) in the case of Ms. Sanika Sawant (Assessee s daughter) has also dealt with the same set of facts and allotment letter dated 22.11.2014 as well as sale deed dated 06.11.2019 as involved in the instant case and considered the allotment letter as agreement for fixing the amount and ultimately allowed the identical claim as raised by the Assessee in this case. For clarity and ready reference, the conclusion drawn by the then Ld. CIT(A) is reproduced herein below: 5.3.12 I have considered the submissions of the appellant. The same were forwarded to the assessing officer for comments/remand report but the assessing officer has not submitted the report. Hence, the issue is being decided based on the case record and evidences relevant to the matter. It is noted that the company M/s Spark Builders and Infra Projects Pvt Ltd has merged into M/s Desai Residency Pvt Ltd vide order dated 29.08.2019 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 22.12.2014 and the sale consideration, being less than 10% the same may be ignored, is not tenable as the section 56(2)(x) clearly lays down that the excess of stamp duty value from the sale consideration is taxable if the excess is more than 5% of the sale consideration. In this case the apparent difference between the stamp duty value of the property as on 22.12.2014 and the sale consideration of the property is more than 5%. Hence, the same is taxable. The reliance of the appellant on the various judicial pronouncements is misplaced as the same are on different set of facts and in the context of section 50C and not 56(2)(x). 5.3.17 The assessing officer is directed to consider the stamp duty value of the property as on 22.12.2014 as Rs. 1,88,00,000/- as submitted by the registered valuer and to consider the sale consideration of the property as Rs. 1,75,00,000/- as per the provisions of section 56(2)(x). Further, the difference between the two values is to be assessed in the hands of the appellant with respect to her share only i.e. the 1/3rd difference between the stamp duty value of the property as on 22.12.2014 and the sale consideration of the property is to be added ..... X X X X Extracts X X X X X X X X Extracts X X X X
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