9911796707
TMI Blog2024 (11) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the value of the property has to be taken as on the date of sale registration. First of all, when builder gives an allotment letter with terms and conditions and all the rights and the value of purchase is agreed upon which was accepted by the assessee and acted upon then it is clearly covered under aforesaid proviso to section 56(2)(x) of the Act. The assessee in the present facts agreed to purchase the immovable property in an under construction premises in the year 2016 in terms of allotment letter and also made the payments before the sale was registered. Therefore, based on the above discussions and the decisions relied by the Ld.AR on this issue, we are of the opinion that, the value as on date of allotment has to be treated as stamp duty value for the purpose of aforesaid provision of section 56(2)(x) of the Act. We further note that on the date of allotment the stamp duty value was admittedly Rs. 5,67,18,369/-, whereas, the agreement value was Rs. 5,30,87,707/-. Further, as the difference is within the 10% tolerance limit applicable as per the amendment to section 56(2)(X)(b)(ii) brought into the statute w.e.f. 1.04.2021, no addition is to be made in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or A.Y.2018-19 was less than Rs. 50 Lakhs. 8. The learned CIT(A) as well as learned assessing officer erred in not referring valuation of said property to the Department Valuation officer to determine valuation of such property. 9. The appellant craves leave, to add, to amend, to alter or delete any of the foregoing grounds of appeal and further reserves its right to file a detailed submission during the hearing of the appeal. 2. Brief facts of the case are as under:- 2.1. The assessee is an individual and filed his return of income for the year under consideration on 04/08/2017 declaring total income of Rs. 67,09,210/-. The case was selected for scrutiny to verify difference in transaction amounting to Rs. 5,30,87,707/- as value of purchase of immovable property as per the stamp duty authority was Rs. 6,01,17,500/-. The Ld.AO was prima facie of the view that the difference being Rs. 70,29,793/- is taxable in the hands of assessee as per provision of section 50C/ 56 (2)(vii)/ section 43 CA of the Act. 2.2. Notices u/s. 143(2) and 142(1) was issued to the assessee, in response to which submissions were filed regarding the transaction of immovable property. The assessee submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken as the value assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer on the date of the agreement In view of the above provision, the stamp duty value of Rs. 6,01,175,500/- as per agreement dated 28.07.2017 is considered for the purpose of section 56(2)(vii)(b) and not the stamp valuation of Rs. 5,30,87,707/- as on the date of booking. ii. Further the assessee in his reply dated 26.03.2021 has claimed that the said property was purchased by Mrs. Padma Bhandary, (spouse) and the assessee being as a joint owner. So. if any addition is to be made u/s 56(2)(vii)(b) then it should be made in the hands of Mrs. Padma Bhandary and not in my hands of the assessee. On perusal of the payment summary details submitted by the assessee it is found that a total amount of Rs. 6,19,93,775/- (inclusive of Purchase consideration, Registration charges Stamp duty, VAT Other charges, and GST) has been made as payment towards purchase of immoveable property on which an amount of Rs. 2,37,98,103/- has been transferred from the assessee's bank account and the balance amount was transferred from Smt. Padma Bhandary's account. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been able to show as to how he was prejudiced by the act of AO not considering the final reply filed by him on 04/08/2021 (which, in any case, was not received by the AO in the first place, as narrated above). In view of the above discussion, ground no. 3 of appeal is hereby dismissed. 6.3 Ground no. 5 6: These grounds of appeal, being general in nature, do not require separate adjudication. Aggrieved by the order of the Ld.CIT(A)/NFAC, assessee is in appeal before this Tribunal. 4. Ground No. 1 raises by the assessee is general in nature therefore do not require adjudication. 5. Ground No. 2(a) and 2(b) is raised by the assessee alleging that, ownership of the said immovable property, treated as jointly owned by the assessee, is contrary to the intention of the assessee, and the addition made in the hands of the assessee invoking provision of section 56(2)(X) is bad in law. 5.1. The Ld.AR submitted that, the immovable property was actually purchased by assessee s wife, and that, the assessee s name was added as joint holder for convenience in respect of succession. It is submitted that, assessee s wife received sum of Rs. 3,96,89,950/- upon sale of ancestral property of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld.AR submitted that, the entire amount received by her was invested in the purchase of the immovable property and the balance was paid by the assessee on behalf of her which is treated as loan from husband in her books. The Ld.AR thus submitted that the major portion of the sale consideration was paid by assessee s wife. He submitted that only because the assessee advanced certain amount as loan to his wife will not ipso facto make the assessee a co-owner of the immovable property. Referring to page 130 of the paper book, the Ld.AR submitted that, though the receipt issued by the builder was in the name of both assessee and his wife but the intention of the assessee by adding his name as joint owner in the agreement was merely to circumvent any succession issues in the event of any unfortunate incidence in the future. 5.6. The Ld.AR referring to pages 85-89 of the paper book submitted that, the said immovable property was never shown in the books of the assessee, whereas in the balance sheet of assessee s wife, the said immovable property is reflected as investment. It is further submitted that, the amount paid by the assessee to the builder as initial payments in the year 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the immovable property under consideration has been purchased in the name of assessee and his wife. In the paper book filed before us, we note that initial letter of allotment was issued by the builder on 23/06/2016 is in the joint names of the assessee and his wife as a second signatory. Subsequently, as per request vide letter dated 27/09/2016, the builder changed the first preference name to be the wife of assessee and second preference to be the assessee himself. The builder also issued a no objection to interchange the first preference to be assessee s wife as against assessee as per the letter dated 28/11/2016. It is noted that in the agreement for sale, registered on 28/09/2017, assessee s wife name was put as first purchaser followed by assessee s name. 6.1. Much has been argued by the Ld.AR in respect of the money paid by assessee to be treated as loan to his wife, and that the intention behind is to put assessee s wife to be 100% owner of the immovable property. It is noted that, assessee s wife was assessed for A.Y. 2018-19 under scrutiny, wherein the Ld.AO verified the investment made by her and the exemption claimed section 54F in respect of the same immovable propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the wife of the appellant directly to the builder/developer 29,72,913 15/03/2018 Eighth installment paid by the wife of the appellant directly to the builder/developer 21,67,590 28/05/2018 Ninth installment paid by the appellant directly to the builder/developer 59,45,826 28/06/2018 Tenth installment paid by the wife of the appellant directly to the builder/developer 29,72,913 02/07/2018 Proportionate shares of taxes and other charges in respect of society paid by the wife of the appellant 8,81,460 11/07/2018 Eleventh installment paid by the wife of the appellant directly to the builder/developer 29,72,913 11/07/2018 Club house charges, legal charges, development charges, formation of society charges paid by the appellant directly to the builder/developer 6,36,463 19/07/2018 Corpus fund paid by the appellant directly 2,08,100 7.2.The Ld.AR submitted that, the provision of section 56(2)(X) is not applicable to the present facts of the case, as it is an undisputed fact that the assessee and his wife made initial payments towards the purchase of the property as on 22/06/2016 and subsequent payments prior to the date of registration. The Ld.AO therefore cannot invoke provision of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration and at that time, the ready reckoner rate was Rs. 6,19,93,775/-/-. The Ld.AO invoked deemeing provisions of Section56(2)(x) of the Act the relevant portion of section56(2)(x) reads as under:- Sec. 56 .. (x) where any person receives, in any previous year, from any person or persons on or after the 1st day of April, 2017) (a). ......... (b) any immovable property, - (A) without consideration, the stamp duty value of which ex- ceeds fifty thousand rupees, the stamp duty value of such property; (B) for a consideration, the stamp duty value of such property as exceeds such consideration, if the amount of such excess is more than the higher of the following amounts, namely:- (i) the amount of fifty thousand rupees; and (ii) the amount equal to [ten] per cent of the consideration:] Provided that where the date of agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of agreement may be taken for the purposes of this sub- clause: Provided further that the provisions of the first proviso shall apply only in a case where the amount of consideration referred to therein, or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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