2023 (6) TMI 35 - AT - Income Tax

Tribunal rules in favor of assessee, disallows retrospective application of tax provision

The Tribunal ruled in favor of the assessee, holding that Section 56(2)(x) of the Income Tax Act, inserted in 2017, should not be applied retrospectively ... Addition u/s 56(2)(x) - Availability of section 56(2)(x) in the statute book - information received that the assessee has purchased property for a consideration less that the stamp valuation of the property - CIT(A) sustaining addition to the extent of 50% of difference in stamp duty value of the flat as per SRO and purchase consideration as per agreement - HELD THAT:- Assessee has purchased the flat vide agreement dated 13.07.2009 and the section 56(2)(x) was not in the statute book, and also it is well settled principle of Law that a charging section cannot be pressed into service retrospectively unless it is specifically provided for by the legislature. The provisions of Sec. 56(2)(x) of the Act are incorporated in the Finance Act 2017 with the prospective applicability from A.Y. 2017-18 and the transactions entered into prior to 1.04.2017 would not suffer any implications of the section. In the present case, the transaction of purchase of flat is vide agreement dated 13.07.2009 and it was registered on 14-7-2017 in the F.Y. 2018-19. Merely because the first payment of Rs.2 lakhs was made on 8-10-2009 subsequently after date of agreement, the revenue cannot rely on the second proviso to section 56(2)(x) of the Act and tax the difference in stamp duty value of flat as per SRO and purchase consideration as per agreement. Since the section 56(2)(x) of the Act is not applicable to the assessee, as the agreement was entered prior to 104-2017, hence the second proviso cannot be made applicable and the assessee cannot be fastened the liability in the light of second proviso to section 56(2)(x) - Direct the AO to delete the addition and allow the grounds of appeal in favour of the assessee. Issues Involved:1. Applicability of Section 56(2)(x) of the Income Tax Act.2. Date of the agreement and its implications.3. Ownership and proportionate addition under Section 56(2)(x).4. Retrospective application of tax provisions.5. Judicial precedents supporting the assessee's position.Summary:1. Applicability of Section 56(2)(x) of the Income Tax Act:The assessee argued that the provisions of Section 56(2)(x) of the Act, inserted via Finance Act, 2017 and applicable from 01.04.2017, should not be applied to their case as the agreement for sale was entered into on 13.07.2009. The Tribunal agreed, noting that the section was not in effect at the time of the initial agreement, thus the addition of Rs. 9,88,343/- (50% of Rs. 19,76,686/-) is not tenable.2. Date of the Agreement and Its Implications:The assessee contended that the date of the agreement was inadvertently stated as 13.07.2009 instead of 08.10.2009. The Tribunal found that the purchase agreement was indeed dated 13.07.2009 and registered on 14-07-2017. The first payment was made on 08-10-2009, which is subsequent to the agreement date, but still prior to the applicability of Section 56(2)(x).3. Ownership and Proportionate Addition under Section 56(2)(x):The CIT(A) recognized that the assessee was only a 50% owner of the property, thus only 50% of the difference in the stamp duty value and purchase consideration should be added. The Tribunal upheld this view but directed the deletion of the entire addition since Section 56(2)(x) was not applicable.4. Retrospective Application of Tax Provisions:The Tribunal emphasized that a charging section cannot be applied retrospectively unless explicitly stated by the legislature. Since Section 56(2)(x) was incorporated prospectively from A.Y. 2017-18, transactions entered into prior to 01.04.2017 should not be affected.5. Judicial Precedents Supporting the Assessee's Position:The Tribunal considered various judicial decisions, including Principal Commissioner of Income Tax vs. Naina Saraf and Rajib Rathindra Saha vs. Income Tax Officer, which supported the assessee's claim that Section 56(2)(x) should not apply to transactions predating its enactment.Conclusion:The Tribunal set aside the order of the CIT(A) and directed the Assessing Officer to delete the addition, allowing the appeal in favor of the assessee. The appeal filed by the assessee is allowed.