TaxTMI 
TaxTMI 
2020 (2) TMI 1177
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.... and used by the appellant to make payments of properties purchased by the appellant in 2009 as according to the Pr. GIT, the repayment is not clear and verifiable. 3) On the facts and circumstances of the case and in law, the learned Pr. CIT -22 has erred in showing how the assessment order is passed by the AO is erroneous in so far as it is prejudicial to the interest of the revenue. 3. Briefly stated, the relevant material facts are as follows. The assessee before us is an individual, and his assessment under section 143(3) was completed on 29.08.2016 accepting the returned income of Rs. 11,34,570/-. Subsequently, however, the learned PCIT noticed that the assessee had entered into purchase assessments, on 21.12.2003, at the stated price of Rs. 2,13,75,000/- and Rs. 1,42,00,000/- whereas stamp duty valuation for these properties was Rs. 3,58,76,190 and Rs. 2,42,33,000/- respectively. The PCIT also that, in terms of the provisions of Section 56(2) (vii) (b), such a difference between the stamp duty valuation and stated consideration was liable to be taxed, in the hands of the assessee, as income from other sources. It was also noticed that the assessee has taken loan of Rs. 3,....
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....cting proper investigation and without proper application of mind and is an erroneous order which is prejudicial to the interest of revenue within the provisions of Sec. 263 of the Income-tax Act, 1961. Therefore, this notice is being issued to the assessee within the meaning of Section 263(1) of the IT. Act requiring to show-cause as to why the undersigned should not invoke the jurisdiction u/s 263 of theI.T, Act and revise the assessment order u/s 143(3) of the Act passed on 29.08.2016, For the purpose, you may appear either personally or through your authorized representative to represent in the matter before the undersigned on 22.02.2019 at the address given above. In the alternative, you may represent through written submissions in the matter and the same shall be considered before finalization of the / proceedings. 4. In response to the aforesaid show cause notice, it was contended that since the purchase of property was made on 31.08.2009, and it was only registration that was done on 21.12.2013 the provisions of Section 56(vii)(b) did not come into play. It was contended that since initial payment was made on 31.08.2009 and since allotment letter by the builder was issue....
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.... Further as per proviso to the said section, where the date of the1 agreement fixing the amount of consideration for the transfer ofimmovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for this purpose. This proviso makes it clear that even the assessee claims to have purchased property prior to the date of registration of agreement, still the difference between the stamp duty value of property on any such prior date reduced by actual consideration paid is chargeable to tax. 7.1 The AO has not verified the claim of purchase of property on prior date of registration of agreement along with payment details. Even the claim of purchase of property prior to the date of registration of agreement is verified, still the stamp duty value of property as on date of purchase agreement is required to be verified and reckoned for computation of Income as per mandate of the said provisions of the Act and difference amount is taxable under the head Income from other sources. 7.2 The AO has not taken on record the creditworthiness of the amount of Rs. 3,30,00,000/- taken from Ankur Orbit Enterprise w.r.to applicability ....
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.... In view of the findings mentioned hereinabove and in terms of provisions of section 263 read with Explanation 2, it is clear that the Assessment Order passed u/s 143(3) dated 29.08.2016 in the instant case for A.Y.2014-15 is passed without conducting proper inquiries or verification and without proper application of mind and hence, is an erroneous order which is prejudicial to the interest of revenue within the provisions of Sec. 263 of the Income-tax Act, on the above discussed issue. I, therefore, invoke the provisions of section 263 and set aside the impugned assessment order to be made after conducting inquiry into the limited issues as stated above and allowing reasonable opportunity to the assessee. 6. The assessee is aggrieved and is in appeal before us. 7. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the legal position. 8. Learned counsel's basic submission has three main planks (a) all the necessary facts were before the Assessing Officer and, as such, it cannot be presumed that the matter was not examined by the Assessing Officer; (b) the date of purchase is the date on which allotment lette....
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....stablish, that the Assessing Officer had examined the application of Section 56(2)(vii)(b) at all. Learned counsel's plea that this provision to section 56(2)(vii)(b) comes into play, overlooks the fact that application of proviso is entirely a factual matter which has not been examined at all, and, in any event, it is a highly contentious issue whether an allotment letter issued by a private builder, even if that allotment be bonafide, can be equated with DDA allotments referred to in CBDT Circular no 471 dated 15.10.1986. It is not each and every allotment by a builder which can be equated with the allotment letter by the DDA; that aspect has to be examined on merits and it is to be seen whether "the terms of the scheme of allotment and construction of flats/houses by the cooperative societies or institutions are similar to those mentioned in para 2 of Board Circular No. 471" as is stipulated in CBDT circular No. 672. Para 2 of the CBDT circular no. 471, for ready reference, is set out below: 2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under Self-Financing Scheme (SFS) of the D.D.A. amounts to purchase or is construction by she D.....