TaxTMI 
TaxTMI 
2020 (7) TMI 188
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....m, for a consideration of Rs. 3,50,000/- and Rs. 2,00,000/- which were valued by the Sub- Registrar at Rs. 5,26,660/- and Rs. 3,26,976/- respectively. The Assessing officer worked out the deemed sales consideration as per the aforesaid DLC value and added the difference of Rs. 3,03,596/- u/s 56(2)(vii)(b) in the hands of the appellant, under the head "Income from other sources". 3. On appeal, the ld. CIT(A) has confirmed the addition and against the said findings, the assessee is in appeal. During the course of hearing, our reference was drawn to the findings of the ld CIT(A) which read as under:- "As regards Ground No. 2, since the matter pertains to A.Y 2014- 15 and the provisions of section 56(2)(vii)(b) have been made effective from April 2014 present assessment year under appeal is covered. The AO has not questioned the source or nature of the transaction but the difference in the actual value paid to the seller & the DLC rate taken by the SVA. The difference is sought to be taxed under 'other sources' income as per the above referred section. The appellant has contended that since the purchased land was agricultural, his case was not covered under section....
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.... of 56(2)(vii)(b) would apply in case of these nine assets, if and only if, they are capital assets. It is not without a purpose or intent that the word means has been substituted with means the following capital asset of the assessee. 7. It was submitted that it is a fundamental rule of statutory interpretation that a section has to be read as a whole, and not in isolation, and due weightage has to be given to the provisos and explanations. An Explanation is at times appended to a section to explain the meaning of words contained in the section. [S. Sundaram Pillai vs. Pattabhiraman, AIR 1985 SC 582] It becomes a part and parcel of the enactment. [Bengal Immunity Co. Ltd. vs. State of Bihar, AIR 1955 SC 661 p.733]. The meaning to be given to an Explanation must depend on its terms, and no theory of its purpose can be entertained unless it is to be inferred from the language used [Dattaraya Govind Mahajan vs. State of Maharashtra AIR 1977 SC 915 p.928] But if the language of the Explanation shows a purpose and a construction consistent with that purpose can be reasonably placed upon it, that construction will be preferred as against any other construction which does not fit in w....
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....xability of capital gain, is also subjected to taxation under Section 56(2) or for the purposes of taxation under Section 56(2), the immovable property should satisfy the definition of capital asset? 11. It was submitted that the term 'immovable property' is not defined for the purpose of Section 56(2). However, the term 'Property' is defined for the purpose of this clause. The term 'Property' "means the following capital asset of the assessee, namely immovable property being land or building or both, shares and securities, jewellery, archaeological collections, drawings, paintings, sculptures, any work of an art or bullion. From the above definition, it is evident that 'property' covers only the immovable properties which are in the nature of 'capital asset'. However, Section 56(2) (vii) has used the word any immovable property while fixing the taxation. Now, the challenge is whether we should interpret the phrase 'any' in light of 'capital asset' or 'any' in its normal meaning. If we adopt the former, only such immovable properties which are in nature of capital assets are covered under the ambit of Section 56(....
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....d as under: "(vii) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009 but before the 1st day of April, 2017,- (a) any sum of money, without consideration, the aggregate value of which exceeds fifty thousand rupees, the whole of the aggregate value of such sum; (b) any immovable property,- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: Provided that where the date of the 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 the agreement may be taken for the purposes of this sub-clause: Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any....
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....4) of section 2; (d) "property" means the following capital asset of the assessee, namely:- (i) immovable property being land or building or both; (ii) shares and securities; (iii) jewellery; (iv) archaeological collections; (v) drawings; (vi) paintings; (vii) sculptures; (viii) any work of art; or (ix) bullion; (e) "relative" means,- (i) in case of an individual- (A) spouse of the individual; (B) brother or sister of the individual; (C) brother or sister of the spouse of the individual; (D) brother or sister of either of the parents of the individual; (E) any lineal ascendant or descendant of the individual; (F) any lineal ascendant or descendant of the spouse of the individual; (G) spouse of the person referred to in items (B) to (F); and (ii) in case of a Hindu undivided family, any member thereof;] (f) "stamp duty value" means the value adopted or assessed or assessable by any authority of the Central Government or a State Government for the purpose of payment of stamp duty in respect of an i....
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....oth are only covered u/s 56(2)(vii). We agree with the contention of the ld AR that where the term "property" has been defined to mean a capital asset as so specified and where an immoveable property as so specified being land, building or both is not held as an capital asset, it will not be subject to the provisions of section 56(2)(vii)(b) of the Act. In the instant case, therefore, where the agricultural land doesn't qualify as falling in the definition of capital asset, provisions of section 56(2)(vii)(b) cannot be invoked. 20. In the instant case, whether agriculture land so acquired falls in the definition of capital asset or not, one has to refer to the provision of section 2(14) which exclude agriculture land in India subject to certain exceptions. However, there are no findings of the lower authorities in this regard. Therefore, we deem it appropriate to set-aside the matter to the file of the AO for the limited purposes of examining whether the two plots of agricultural land so acquired falls in the definition of capital asset or not. Where it is so determined by the Assessing officer that the agricultural land so acquired doesn't falls in the definition of capital ass....