TaxTMI 
TaxTMI 
2024 (11) TMI 1258
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.... a vacant plot measuring 1008 sq.yds. out of Khasra No.398/3 (1-00) situated in extended Lal Dora Abadi of village Hamidpur, Tehsil Alipur, Distt. North Delhi. The assessee claimed the cost of purchase at Rs. 70,00,000/- whereas the stamp duty value of the property was Rs. 1,63,50,103/- plus stamp duty paid for the same is Rs. 6,54,050/-. The assessee was asked to submit the sources of the property and various claims and details of the properties held by the assessee. In response, assessee has not filed relevant information as called for by the Assessing Officer. The Assessing Officer issued summons u/s 131 of the Act to the assessee to submit documentary evidences of deduction claimed under Chapter -VIA, property papers against which advance received amounting to Rs. 28,00,000/-, copy of agreement, sale purchase status of the property, source of payment of advance, bank statement agreement to sell in respect of abovesaid property and possession letter of property which was purchased by the assessee on 09.04.2013. In response, assessee vide letter dated 07.12.2016 submitted that the property was purchased for a value of Rs. 70,00,000/- although stamp duty value is Rs. 1,63,50,203/-....
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.... ld. CIT (A) observed that the onus has not been satisfactorily discharged by the assessee. Similar observations were made relating to Surender Kumar. After considering the submissions of the assessee and observing the above discrepancies, finally ld. CIT (A) held that the purchase consideration was paid by the assessee during FY 2012-13 and possession was also taken in the same period i.e. relating to AY 2013-14. He held that addition of Rs. 70,00,000/- to be made u/s 69 would be for AY 2013-14 and not for AY 2014-15, the impugned year under consideration. He deleted the addition proposed by the Assessing Officer in the current assessment year. Ld. CIT (A) advised the Assessing Officer to take appropriate action u/s 147/148 to reassess the income of the assessee for the AY 2013-14 after due application of mind independently 5. Ld. CIT (A) observed the purchase amount at Rs. 1,63,50,103/- on the basis of circle rate on which stamp duty was paid in the light of section 56(2)(vii)(b)(ii) of the Act and directed the difference of amount between circle rate and actual amount paid by the assessee to be treated as Income from Other Sources. Since the difference amount is exceeding Rs.....
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....id additions are erroneous and not sustainable both on facts and in law and accordingly the addition of Rs. 6,54,0501- is liable to be deleted." 8. At the time of hearing, ld. AR of the assessee submitted that registration of the property was registered on 05.04.2013 which is not FY 2013-14. He brought to our notice page 1 of the assessment order wherein AO has recorded the same stamp duty value and actual cost of purchase. Therefore, the issue of section 50C was dealt by the AO and proceeded to make the addition of the property based on stamp duty valuation along with stamp duty paid by the assessee. He submitted that AO cannot make addition based on stamp duty when the assessee has made the submissions that the actual cost of purchase was only Rs. 70,00,000/-. 9. Ld. AR for the assessee submitted that the assessee has paid Rs. 70,00,000/- during FY 2012-13 and date of payment was already submitted before the ld. CIT (A) and also the assessee has taken possession of the property on 17.01.2013. After considering the actual facts on record, ld. CIT (A) deleted the addition made by the AO with the observation that the transaction under consideration is pertained to AY 2013-14 a....
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....rs- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; (aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment; (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter ar....
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....change the provision of law qua the item of which assessment was made. Therefore, in the absence of such power, learned CIT(Appeals) could not have treated the addition made u/s 69C as the addition made u/s 69B and the same is contrary to the spirit of the Act. Reliance placed by the learned counsel for the assessee on the judgment of the Hon'ble Delhi high Court, rendered in the case of CIT Vs. Aar Pee Apartments (P) Ltd. (supra), has held that from the reading of sub-section (1) of Section 142A, it is clear that legislature referred to the provisions of Section 69, 69A and 69B but specifically excluded 69C. The principle of casus omissus becomes applicable in a situation like this. What is not included by legislature and rather specifically excluded, cannot be interpreted by the Court through the process of interpretation. The only remedy is to amend the provision. It is not the function of the Court to legislate or to plug the loopholes in the law. In the light of the above binding precedent the action of the learned CIT(Appeals) in treating the addition made by the Assessing Officer u/s 69C as have been made u/s 69B is contrary to the law laid down by the Hon'ble Jurisd....
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....ded that the transaction pertained to AY 2013-14. The AO was directed to delete the addition of Rs. 70,00,000/- in AY 2014-15. However, he gave an advice to AO to proceed with the reopening of the assessment for AY 2013-14 as per law. However, ld. AR objected to the above advice. After considering the finding of ld. CIT (A), we observed that the advice given by him has only advisory value and cannot be treated as direction, therefore, even the ld. CIT (A) has advised so but it has no value for persuasion and it does not partake the value of direction. 16. The assessee is in appeal before us for invoking of section 56(2)(vii)(b)(ii) of the Act by the ld. CIT (A) in AY 2014-15 even though after giving proper finding that the transaction under consideration is pertained to AY 2013-14 merely because the registration of the transaction was made in AY 2014-15 it does not change the character of the transaction and it belongs/pertains to AY 2013-14 only. The provisions of section 56(2)(vii)(b)(ii) of the Act was amended w.e.f. 01.04.2014. The ld. CIT (A) cannot invoke the provisions of section 56(2)(vii)(b)(ii) of the Act on the transactions pertaining to previous assessment year, as h....