TaxTMI 
TaxTMI 
2021 (9) TMI 449
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....roper on the facts of the case and in law in confirming the action of the Ld Assessing officer in considering the agriculture land as not being covered by clause (d)(i) of section 56(2) and in turn considering the difference in the stamp duty valuation and transaction value as taxable u/s 56(vii) (b) of the Act. 02.1 The appellant prays that 02.1 The Ld Assessing Officer may be kindly directed to consider the agriculture land as covered under the clause (d)(i) of the explanation to clause (vii) u/s 56(2) and accordingly delete the addition made of Rs. 18,84,845/-. 02.2 Personal hearing may be granted. 02.3 Any other relief that your honours may deem it fit may be granted. 03. The appellant craves leave to amend, alter or delete any or all of the above grounds of appeals and to add any new or additional ground of Appeal at the time of hearing." 3. Brief facts of the case are that the assessee filed his Return of Income for the A.Y. 2014-15 by declaring income of Rs. 5,79,520/-. The case was selected for scrutiny. During the assessment, on verification of certain details, the ld.Assessing Officer (AO) noted that assessee along with two ....
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....aimed that Jantri rate cannot be treated as basis for making addition to the income of the assessee. The assessee also contended some other facts that agreement to purchase the land was entered in 2010-11 and part consideration was paid by co-owner on 25.10.2010 which is reflected in the registered sale deed. The contention of assessee/explanation furnished by the assessee was not accepted by the ld.AO. The ld.AO held that a plain reading of section 56(2)(vii)(b)(ii) made it clear that Sub-section and clause are applicable in respect of transfer of "any immovable property" and not for capital asset only. It was further held that intention of legislature behind insertion of sub-clause d(ii) of clause 7 of 56(2) is to curb the practise of 'on money' in relation to transaction of immovable property in the hand of purchaser. Thus, from amended provision of clause (vii) of sub-section( 2) of section 56, where any immovable property is received for a consideration which less than the stamp value of property by an amount exceeding Rs. 50,000/- , the stamp duty value of said property has exceeded such consideration is chargeable to tax in the hands of individual or HUF as income from other....
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....t possibly include shares & securities, jewellery etc. as mentioned in the explanation. The fact that these are included within the meaning of 'property' clearly indicates that the said explanation is in connection with clause (c) of sec.56(2)(vii). Moreover, if the meaning given in explanation is imported to the word property in clause (b), then we will have absurd meaning like immovable shares n securities or immovable jewelery. An interpretation that gives absurd meanings should be discarded. Hence, the interpretation of phrase 'immovable property ' canvassed by the AR is rejected. This ground of appeal is rejected." 5. On the basis of aforesaid observations, the Ld. CIT(A) upheld the order of A.O. Further aggrieved, the assessee has filed present appeal before this Tribunal. 6. We have heard the submission of learned authorised representative (ld.AR ) for the assessee and the learned Senior departmental representative (Sr- DR) for the Revenue and have gone through orders of authorities below. The ld.AR of the assessee submits that the immovable property/land purchased by the assessee is agricultural land and is not 'capital asset 'as specified item no. (i)....
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....and have gone through the orders of authorities below. We find that the ld.AO made addition under section 56(2)(vii)(b) by taking view that a plain reading of section 56(2)(vii)(b)(ii) made it clear that Sub-section and clause are applicable in respect of transfer of "any immovable property" and not for capital asset only. It was further held that intention of legislature behind insertion of sub-clause d(ii) of clause (vii) of 56(2) is to curb the practise of 'on money' in relation to transaction of immovable property in the hand of purchaser. Thus, from amended provision of clause 7 of sub-section(ii) of section 56 where any immovable property is received for a consideration which less than the stamp value of property by an amount exceeding Rs. 50,000/-, the stamp duty value of said property has exceeded such consideration is chargeable to tax in the hands of individual or HUF as income from other sources. The ld.AO on the basis of aforesaid submission, all the difference of the Rs. 18.84 lakhs under the head income from other sources. 11. The ld.CIT(A) upheld the order of ld.AO by holding that there is no dispute regarding the status of land being an agricultural land situated....
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....lause (i) talks of without consideration the aggregate fair market value which exceeds Rs. 50,000/-; and sub-clause (ii) talks of consideration which is less than aggregate market value of the property by an amount exceeding Rs. 50,000/-. Explanation under the said section defines certain terms and clause (d) talks of property to mean capital assets of the assessee and then refers to the list of assets. 9. The case of assessee before us is that it has purchased agricultural asset which was held as 'Current Asset' by the assessee and when the same was sold in 2016, business income was declared on the said transaction. The assessee also stressed that agricultural land purchased by assessee was not capital asset, for which reliance was placed on the definition of 'capital asset' under section 2(14) of the Act. As per terms used under the Act, an immovable property is defined to be the land or building or both as per clause (d) of Explanation under the said section. Hence, clauses (a) and (b) of section 56(2)(vii) of the Act are not attracted. Clause (c) talks of any property other than immovable property. Section 2(14) of the Act defines 'capital asset'....
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....perty. However, clause (c) very clearly talks of property other than immovable property and the word 'property' has further been defined under clause (d) of Explanation thereunder. In the totality of the above said facts and circumstances, there is no merit in reliance placed upon by the learned Departmental Representative for the Revenue on the ratio laid down by Jaipur Bench of Tribunal in ITO v. Trilok Chand Sain (supra). In view of clearcut provisions of the Act, we find no merit in the orders of authorities below in making the aforesaid addition in the hands of assessee. The ground of appeal No. 1 raised by assessee is thus, allowed. 12. In the result, the appeal of assessee is allowed." 13. We further find that by following the decision of Pune Tribunal, the Jaipur Bench also took a similar view in Yogesh Maheshwari vs. DCIT (supra). We have independently examined the facts of the case. We find that the lower authorities has not disputed the fact that the land purchased by the assessee are beyond the 8 km from the mentioned unit of SMC. We further filed that ld.CIT(A) further admitted that the assessee purchased the agricultural land. We have seen the sale....