TaxTMI 
TaxTMI 
2021 (12) TMI 308
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.... has erred in confirming and upholding the addition of Rs. 61,40,868/= regarding difference between Stamp Duty Value of Rs. 1,88,63,868/= and Transaction Value of Rs. 1,27,22,500/=, made by the Appellant regarding Booking of an Under Construction Flat with the Developer and the Payments made All together at instead of Deferred Payments of Stage-wise of Three Years and the Risk involved there-in is itself is out of the purview of the addition under section 56(2)(vii)(b)(ii) of Income Tax Act 1961 ,and as such in fact and in Law the same is unjustified, unwarranted and bad in law, 3. That the Learned CIT(A) has erred in confirming and upholding the addition of Rs. 61,40,868/= regarding difference between Stamp Duty Value and Transaction Value, without considering the basis of Valuation considered by the Stamp Duty Authority in a Blanket, manner without considering the Fact as to Ready Flat vs. Under Construction Flat, Deferred Payment vs. Immediate Payment by 3 (Three) Years, SRA Scheme Project, etc, and also Wrong Visit made by the Ward Inspector And without referring to Valuation Officer in-spite of request from the Appellant, the addition under section 56(2)(vii)(b)(ii) o....
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....nt and without prejudice to each another. 10. That the appellant craves leave to add, amend falter, substitute modify any or all grounds of appeal, which' may be necessary at the time of hearing." 2. Briefly stated, the assessee had e-filed his return of income for A.Y. 2014-15 on 10.07.2015, declaring an income of Rs. 7,02,820/-. The return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act. 3. Original assessment was framed by the A.O vide his order passed u/s 143(3), dated 30.12.2016, wherein he had after, inter alia, making an addition of Rs. 61,40,868/- u/s 56(2)(vii)(b)(ii) of the Act assessed the income of the assessee at Rs. 68,43,690/-. 4. Aggrieved, the assessee assailed the addition made by the A.O before the CIT(A). However, the CIT(A) not finding favour with the claim of the assessee upheld the order of the A.O and dismissed the appeal. 5. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. Controversy involved in the present appeal lies in a narrow compass i.e as to whethe....
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....other buildings in the neighbouring areas. However, the claim of the assessee did not find favour with the A.O and was discarded by him after necessary deliberations. It was observed by the A.O that the rate of locality i.e Khar (W) and specifically the rate of Lok Nirman project i.e the building in which the flat purchased by the assessee was situated, as checked by him from the website magicbricks was on date Rs. 34,722/- per sq. ft., therefore, the same relating back to the year under consideration i.e F.Y. 2013-14 would not be less than Rs. 20,000/- to Rs. 25,000/- per sq. ft. In the backdrop of his aforesaid observations, the A.O was of the view that rate of the property that was adopted by the Stamp Valuation Authority during the year under consideration i.e Rs. 19,856/- was well in conformity with the aforesaid market value which he was of the view would not be less than Rs. 20,000/- per sq. ft. to Rs. 25,000/- per sq. ft. Backed by his aforesaid observations, the A.O was of the view that the value adopted by the Stamp Valuation Authority duly represented the fair market value of the property in question. It was further observed by the A.O that as the assessee had paid a Sta....
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....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 mode other than cash on or before the date of the agreement for the transfer of such immovable property;] (c) any property, other than immovable property,- (i) without consideration, the aggregate fair market value of which exceeds fifty thousand rupees, the whole of the aggregate fair market value of such property; (ii) for a consideration which is less than the aggregate fair market value of the property by an amount exceeding fifty thousand rupees, the aggregate fair market value of such property as exceeds such consideration : Provided that where the stamp duty value of immovable property as referred to in sub-clause (b) is disputed by the assessee on grounds mentioned in sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property....
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....): 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 immovable property;]." Also, we herein cull out the provisions of Sec. 50C(2) of the Act [as referred in "third proviso" to Sec. 56(2)(vii) of the Act], which reads as under: "50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset ,being land or building or both, is less than the value adopted or assessed (or assessable) by an authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed (or assessable) shall for the purposes of section 48 be deemed to be the full value of the consideration received or accruing as a result of such transfer: (2) Without prejudice to the provisions of sub-section (1), where - (a) the assessee claims before any Assessing Officer that the ....
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....tion upon him to have referred the valuation of the property to a valuation officer and not summarily dispose off the objection raised by the assessee on his own. 8. Before us, the ld. A.R had raised multiple contentions to impress upon us that no addition u/s 56(2)(vii)(b)(ii) could have even otherwise validly been made by the A.O, viz. (i) that as the property in question was an under construction flat and no property had been received by the assessee from the builder who had played foul with the assessee; (ii) that the assessee had filed a suit against the builder, viz. Lok Housing and Construction Ltd for specific performance of contract; and (iii) that the builder had failed to hand over the possession of the property to the assessee. However, we are unable to persuade ourselves to substantiate to the claim of the assessee that as the property under construction was an under construction flat which pursuant to the fraud played by the builder had not been received by him till date; and the matter is sub-judice before the courts, therefore, the provisions of Sec. 56(2)(vii)(b) would not be applicable qua the transaction in question. Considering the definition of "transfer" as....