TaxTMI 
TaxTMI 
2024 (9) TMI 1188
X X X X Extracts X X X X
X X X X Extracts X X X X
....ashed. 2. The ld. PCIT erred in law as well as on the facts of the present case in initiating revisionary proceedings and therefore the consequent order is also bad in law and prayed to be quashed. 3. The ld. PCIT erred in law as well as on the facts of the present case in misinterpreting the provisions of sec 56(2)(x) of the Act though the same has no application in peculiar circumstances of the case. Accordingly ld. PCIT erred in setting aside the order of the ld. AO. 4. The ld. PCIT erred in law as well as on the facts of the present case in holding the order of the ld. AO as erroneous in so far as prejudicial to the interest of revenue and consequently the order passed u/s 263 is bad in law. 5. The assessee prays your goodself indulgence to add, amend, modify or delete all or any ground of appeal on or before the date of hearing." 3. The fact as culled out from the records is that the assessee e-filed return of income on 03.07.2018 declaring returned income of Rs. 8,17,300/-. Consequent to that the case of the assessee selected in compulsory scrutiny notice u/s 142(1) was issued online. The reply of the assessee received in response to pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re, liable to revision under the explanation (2) clause (a) & clause (a) of section 263 of the Act. The assessment order is set aside to be made afresh in the light of the observations made in this order. The AO is required to make necessary verification and examine in depth the issues discussed above in accordance with the prevailing law to determine the correct income of the assessee liable to tax for the A.Y.2018-19 after affording reasonable opportunity to the assessee." 5. Feeling aggrieved from the above order of the PCIT passed u/s. 263 of the Act, the present appeal is filed by the assessee challenging the finding recorded thereon. Apropos to the ground so raised the ld. AR appearing on behalf of the assessee has placed their written submission which is reproduced herein below; "Brief Facts: The assessee filed its return of income declaring total income of Rs. 817300/- for AY 2018-19. The assessment was selected for scrutiny under CASS and in the assessment proceedings the assessee stated that during the year it has purchased a property at Rs. 6700000/- for which the agreement of which was entered on 10-4- 2015 while the first payment stood made on 5-6-2014 thro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....At the outset it is submitted that the impugned transaction is duly covered by the first proviso of section 56(2)(x) and as such it is not prejudicial to the interest of the revenue and further the ld. AO accepted the explanation of the assessee on the same issue and completed the assessment at nil income after considering the complete facts and circumstances of the case and as such it is not erroneous. Both the issues have been discussed in detail in coming paragraphs. 1.2.1 Complete facts on record - order of ld. AO not erroneous: We may submit that the complete facts and circumstances were taken in to consideration by the ld. AO before accepting the income returned by the assessee. The agreement dt.10-4-2015, copies of cheques, ready reckoner rate for the relevant period, bank statements etc. were taken on record for coming to the conclusion that there was no income taxable under the provisions of section 56(2)(x) of the Act. Reference may be made to detailed response of the assessee on the same issue which is placed at PB 3-5. Therefore, it is clear that the ld. AO has taken due consideration of documents and information on record and he has taken one....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ght of second proviso to section 56(2)(x) of the Act. We considering the facts, circumstances, submissions, ratio of the judicial decisions set-aside the order of the CIT(A) and direct the Assessing officer to delete the addition and allow the grounds of appeal in favour of the assessee. Reference also may be made to the decision of Hon'ble Jaipur Bench in case of Naina Saraf vs. PCIT in ITA no.271/JP/2020 dt.14-9-2021 which was confirmed by the Hon'ble Rajasthan High Court in the case of Pr.CIT vs. Naina Saraf in DBIT reference no.16/2022 dt.9-5-2022 (Raj)(HC) (PB 75-80) On consideration of the above, it is noted that, the view taken by the learned ITAT is based on logical findings. While rendering the judgment, the learned ITAT has relied upon various judgments of different High Courts and considered the provisions of 56(2)(vii) pre-amendment and post-amendment. Learned ITAT has held that law contained in Section 56(2)(vii)(b) as stood on the date of allotment letter (on 11.11.2009), falling in assessment year 2010-11, did not contemplate the situation of a receipt of property by the buyer with inadequate construction. The learned ITAT has held categorically tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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,- (A) without consideration, the stamp duty value of which exceeds fifty -thousand rupees, the stamp duty value of such property; (B) for a consideration, the stamp duty value of such property as exceeds such consideration, if the amount of such excess is more than the higher of the following amounts, namely:- (i) the amount of fifty thousand rupees; and (ii) the amount equal to ten per cent of the consideration: Provided that where the date of 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 agreement may be taken for the purposes of this subclause: Provided further that the provisions of the first proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by way of an account payee cheque or an account payee bank draft or by use of ele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....only-wife only joint holder: It may be noted that both the bank accounts are in the name of the assessee i.e. Arvind Kumar Agarwal only and his wife Tripta Agarwal is only a joint holder. We are enclosing herewith the copies of both the bank statements for the relevant period: Axis Bank 909010035496123 PB 62-65 Axis Bank 176010100194129 PB 66-69 On the first page of the bank statement, it is clearly mentioned that the account holder name is Arvind Kumar Agarwal i.e. assessee and his wife name is appearing as joint holder Therefore, it is clear that both the conditions for claiming of the benefit of proviso to section 56(2)(x) has been fulfilled by the assessee. 1.9 Value of property Rs. 6504595/- only as per ready reckoner of year 2015: As the assessee has fulfilled both the conditions for claiming of benefit of the proviso, the stamp duty value of year 2015 has to be adopted and the same is less than the purchases consideration. 1.10 Payments made under agreement duly accepted in the registered sale deed: It may be noted that the payment made by the assessee to the tune of Rs. 2300000/- has duly been recognized in the registered agre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the same has been signed by Smt. Tripta Agarwal who is wife of the assessee. Further the assessee is the first account holder of the account thus the payment has effectively been made by the assessee only and not by some other person. So long as the amount is debited from the bank account of the assessee, it is irrelevant that the cheques are signed by some other authorized signatory or joint holder and in the present case, joint holder is his wife only 3 Payment not mentioned in the registered agreement dt.31-1-2018 It is incorrect observation of the ld. PCIT. The assessee made total payments of Rs. 2300000/- before the date of registered agreement. The reference of total payment of Rs. 2300000/- is duly appearing at: (i) Clause (z) of the agreement at PB 19 and (ii) At PB 51 of the registered agreement. 4 Payment not mentioned in the agreement dt.10-4-2015 This is also incorrect observation of the ld. PCIT and the reference of the payment is duly appearing at point no.1 at PB 58-59 wherein the payment of 20% of the consideration is duly noted. So long as the payment has been made over and above the minimum required payment, the conditions of the agre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assessment order as well as of the return of income filed is of Gurgaon state Haryana and thus the PCIT of Jaipur, Rajasthan has no jurisdiction to invoke the provision of section 263 of the Act. On merits of the case of the assessee he argued that the issue which the ld. PCIT raising has already been examined by the ld. AO and the assessee has filed the relevant submission on the issue vide submission dated 05.02.2021 and 25.03.2021 and he read the relevant submission placed on record in the paper page 3 to 5. He also submitted the argument that assessee has paid the money by an account payee cheque dated 05.06.2014 and 06.07.2014 and therefore, the case of the assessee should be governed by the agreement dated 10.04.2015 and thus, once the assessee has paid the money on earlier date by an account payee cheque the case of the assessee falls under the exemption provided in section 56(2)(x) and the ld. AO has verified the issue the ld. PCIT cannot raise the same again so as to reverify the same and the contract of sale is formally entered into on 31.01.2018 so the stamp duty rate should be governed by the agreement dated 10.04.2015. 8. Per contra, the ld DR so far as the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of earnest money/part consideration on or before the execution of the said agreement and balance amount of Rs. 46,77,000/- is to be paid as per Annexure "L" of the said document 12. Thus, it is seen that both the documents are "agreement for sale" and that the document dated 30.01.2018 has been registered. Both the documents are for the purchase of a flat by the assessee from Shiv Shakti Builders and Developers. It is also noted that the document dated 30.01.2018 pertains to an agreement and is not deed of sale as the full payment has not been made by the assessee. It is also noted that the cheques claim by the assessee to have been paid to the builders and developers under reference has not been given by himself it has been signed by Tripta Agarwal, in view of the same the agreement dated 30.01.2018 would be taken as the agreement for sale u/s. 56(2)(x) of the Act and the provisions of the said section would accordingly apply. 13. The assessee has claimed benefit under first proviso to section 56(2)(x) of I.T. Act, 1961 on the ground that the stamp duty value on the date on unregistered agreement i.e. 10.04.2015 should be taken for the purposes of this section as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the same is also not registered one whereas the agreement dated 31.01.2018 is registered one. 10. We have heard the rival contentions and perused the material placed on record. As regards ground Nos. 1 & 2 raised by the assessee about the jurisdiction of PCIT to invoke the provision of section 263 of the Act on the order of the National Faceless Assessment Unit, the bench noted that the assessment order though, the assessee has filed the return of income at the address mentioned in the ITR as Hariyana but as per record of the revenue and even today as per PAN data base the jurisdiction rest with the PCIT, Jaipur-1 and the relevant online records thus shows the jurisdiction of the assessee as under : On perusal of the above details, the jurisdiction belongs to the PCIT, Jaipur-1, and contentions raised by the assessee has no force as per the records available with the revenue. Since, the assessee has not given any proof that he has corrected his address on the data base of the revenue the jurisdiction rest with the ITO, Ward 1(2), Jaipur and consequently, ld. PCIT, Jaipur has appropriate jurisdiction as per provisions of section 263 of the Act. On the contrary, the ld. AR of t....