TaxTMI 
TaxTMI 
2024 (5) TMI 150
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....2014 declaring income at Rs. 2,32,350/-. Thereafter, for the purpose of reopening notice u/s. 148 of the Act was issued after recording the reasons. After carrying out necessary exercise of replying to the objections raised by the assessee, Ld. AO carried out the reassessment proceeding. The facts relating to issue in challenge before us emanates from the transaction of sale of agricultural land during the year. The Sub-Registrar valued the property at Rs. 54,50,145/- out of which assessee's share @ 50% comes to Rs. 42,25,073/-. However, the sale consideration shown by the assessee is only Rs. 8 lacs of which assessee's share is Rs. 4 lacs. Considering this fact, Ld. AO invoked the provisions of section 56(2)(viib) of the Act and the difference between the consideration as per the stamp value authority and the sale consideration disclosed by the assessee i.e. Rs. 38,25,073/- (Rs. 42,25,073 - Rs. 4,00,000/- was added in the hands of assessee u/s. 56(2)(viib) of the Act. Income assessed at Rs. 40,57,420/-. Aggrieved, assessee preferred appeal before the Ld. CIT(A) but failed to succeed. Aggrieved, assessee is now appeal before the Tribunal. 4. Ld. Counsel for the assessee referrin....
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....us, the legal issue raised in ground nos. 1 and 2 are hereby dismissed. 7. Now coming to the merits of the case raised in the ground nos. 3 and 4, the grievance of the assessee is against the finding of the Ld. CIT(A) confirming the addition made by the AO u/s. 56(2)(viib) of the Act. For the sake of repetition, we note that assessee is the 50% owner of agricultural land situated at Tehsil Jahanpur, District Bhilwara which was sold for a consideration of Rs. 8 lakh. Assessee's share is Rs. 4 lakh. However, the property was valued by sub-Registrar at Rs. 84,50,145/-. Assessee's share comes to Rs. 42,25,073/-. So, the difference is Rs. 38,25,073/- which has been charged to tax u/s. 56(2)(viib) of the Act. Before us, the contention of the assessee is that the land in question is agricultural land and not falling in the category of capital asset. In support, fresh evidence have been found placed at pages 95 to 97 of the paper book and the same are as under: (i) Copy of Certificates of Population by Municipal Board, Deoli (Tonk), Rajasthan dated 18.11.2023. (ii) Copy of Certificates of Distance from land to municipal boarders by Municipal Board, Deoli (Tonk), Rajast....
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.... precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel.] [Explanation 2.-For the purposes of this clause- (a) the expression "Foreign Institutional Investor" shall have the meaning assigned to it in clause (a) of the Explanation to section 115AD; (b) the expression "securities" shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);] [(iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within the distance, measured aerially, - (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) ....
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.... "(viib) where a company, not being a company in which the public are substantially interested, receives, in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration received for which shares as exceeds the fair market value of the shares." Clause (d) to Explanation to sec. 56(2)(vii) reads as follows: "(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." From perusal of above provisions, we note that since the agricultural land in question is not a capital asset, section 56(2)(viib) of the Act cannot be invoked. Reliance has been placed on various decision referred (supra). So far as the reliance placed by the ld. DR are concerned, the first decision i.e. Pavan Anil Bakeri (supra), we find that the similar issue has been raised but....
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....y immovable property and thus includes agricultural land beyond specified limit of urban area also and the A.O. also derived support from Section 194-IA of the Act which specifically excludes agricultural land from its purview while mentioning transfer of any immovable property. In order to decide this controversy, it is necessary and imperative to evaluate provisions of definition of income as is given in sub-section (24) of Section 2 of the Act. The sub-section (24) (xv) of Section 2 of the Act includes in income "any sum of money or value of property referred to in clause (vii) or clause (viia) of subsection (2) of Section 56". Section 56 (2) (vii) (a) of the Act applies to any sum of money while Section 56 (2) (vii) (b) of the Act applies to value of property and meaning of property is given in explanation (d) to Section 56 (2) (vii) of the Act. The A.O. thereafter relied on provisions of Section 56 (2) (vii) (b) of the Act in respect to property acquired by assessee and reproduced the same in assessment order and only picked the word immovable property from Section 56 (2) (vii) (b) of the Act but the immovable property being also ITA 300 to 302/JP/2019_ Sh. Yogesh Maheshwari V....
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....8) has held that: - 11. Now, coming to the decision of Jaipur Bench of Tribunal in Trilok Chand Sain (supra), wherein provisions of clause (b) of section 56(2)(vii) of the Act were considered. However, they have failed to take into cognizance the provisions of clause (c) of said section, which talks of property other than immovable property. The Tribunal in para 6 refers only to the definition of 'immovable property' and hold that it is not circumscribed or limited to any particular nature of property. 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." The Coordinate Be....