TaxTMI 
TaxTMI 
2025 (6) TMI 477
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....assessee to file the appeal with a condonation petition and it was accordingly filed with a delay of 108 days. Considering the reasons to be bonafide and genuine, we are inclined to condone the delay and admit the appeal for adjudication. 03. The only issue raised in the various grounds of appeal is against the applicability of the provisions of Section 56(2)(X) of the Act by the ld. AO which was upheld by the ld. CIT (A). 04. The case of the assessee was selected for limited scrutiny on the ground of investment in property. Accordingly, statutory notices were issued along with questionnaire and duly served on the assessee. The AO found that assessee has purchased a property in District-24 Paraganas, P.S. Kalighat Corporation, Kolkata Municipal Corporation, Road Turf Road, Premise No.17, Ward-71, during the year, the stamp value of which was Rs. 1,54,23,248/- but the purchase price was only Rs. 50 lacs. Accordingly, the ld. AO invoked the provisions of Section 56(2)(X) of the Act and made an addition of Rs. 1,04,23,248/- to the income of the assessee in the assessment framed u/s 143(3)/143(3A) and 143(3B) of the Act. 05. In the appellate proceedings, the ld. CIT (A) upheld the a....
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...., it is clear from the above that all payments were made through banking channel right from the F.Y. 2012-13 to A.Y. 2018-19. Therefore, conclusion drawn by the ld. AO is against the facts on record available in the assessment folder as all the materials were before the ld. AO. Similarly, the ld. CIT (A) has not appreciated these facts correctly and simply confirmed the addition made by the ld. AO. We note that the ld. AO has wrongly made the addition and similar ld. CIT (A) affirmed the same. Considering these facts, we are inclined to set aside the order of ld. CIT (A) on this issue and direct the ld. AO to delete the audition. The ground no. 2 is allowed. 8. The issue raised in ground no.3 is against the confirmation of Rs. 63,78,336/- by the ld. CIT (A) as made by the ld. AO u/s 56(2)(x) of the Act on account of difference between the stamp valuation and set forth value. 9. The facts in brief are that the ld. AO during the course of assessment proceedings, noted that the flat which was purchased for Rs. 19 lacs had stamp valuation at Rs. 63,78,336/- and therefore, difference in the invested value and the stamp valuation of Rs. 44,78,336/- was added u/s 56(2)(x) of the Act b....
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....ven this clause does not apply to the assessee as this is applicable for A.Y. 2014-15 and therefore, these provisions are not applicable to the present transaction which was agreed to in A.Y. 2013-14. We also note that this new charging section brought under statute book is applicable prospectively not retrospectively. The ld. Authorized Representative relied on the decision of Pinki Chetan Shah Vs. Addl. ACIT in ITA no. 3629/MUM/2023 and for the sake of ready reference, the operative part of the said decision in the case of Pinki Chetan Shah Vs. Addl. ACIT (supra) is extracted below:- "7. We have heard the parties and perused the material on record. The assessee has purchased a flat along with Shri Prakash Keshrimal Shah and in this regard made a payment of Rs. 11 lakhs on 06.02.2015. The builder has issued a letter of allotment dated 02.03.2015 acknowledging the receipt of the said amount and also mentioning the other terms and conditions of further payments along with delivery schedule of the flat etc. The said letter also mentions that the assessee has agreed to pay a sum of Rs. 49,53,375/- on or before 28.02.2015 which according to the AO was not possible since the letter is....
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....urpose of this sub-clause as they apply for valuation of capital asset under those sections: [Provided also that in case of property being referred to in the second proviso to sub-section (1) of section 43CA, the provisions of sub-item (ii) of item (B) shall have effect as if for the words "ten per cent", the words "twenty per cent" had been substituted;] 8. From the plain reading of the above section it is clear that when a person receives an immovable property where the stamp duty value of such property as exceeds consideration received, then the amount in excess is to be taxed under section 56(2)(x)(b). However the proviso to the above section contains an exception to the effect 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 sub-clause and said proviso to be applied only where the amount of consideration or a part thereof is paid by an account payee cheque or bank draft or through online clearing system of a bank or through any other electronic mode. In assessee's case it is an undis....
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.... the same was described as "earnest money deposit" in the Agreement, meaning thereby, the assessee did not fulfill the condition prescribed in sec. 56(2)(x) of the Act. The Ld A.R further submitted that the Tribunal did not consider the effect of second proviso to sec. 56(2)(x) of the Act in the above said case. We agree with the submissions of Ld A.R with regard to the distinguishing features pointed out in the decision rendered by the co-ordinate bench in the case of Sujauddian Kasimsab (supra). Hence, we are of the view that the above said decision could not lend support to the case of the revenue. 9. On the contrary, we are of the view that the decision rendered by another coordinate bench in the case of Mr Sajjanraj Mehta (supra) is applicable to the facts of the present case. The decision rendered in the case of Mr Sajjanraj Mehta by the co-ordinate bench is extracted below, for the sake of convenience:- "10. We have gone through the order of the A.O, Ld. CIT(A) and various submissions of assessee dated 06-10-2021. Vide pg no-23 to 27 of paper book we have observed the payment made by the assessee to the developer on 17-10-2011 amounting to Rs 14 lacs vide cheque no 90674....
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....ITAT, Hon'ble High Court and Apex Court as under: a) "Siraj Ahmed Jamalbhai Bora vs. ITO Ward-1(3)(1)ITA No. 1886/M/ 2019 dtd. 28/10/2020, (Mum.) (Trib.): Date of registration irrelevant for Sec 56(2)(vii)(b) as substantial obligation discharged on date of agreement. b) Radha Kishan Kungwani vs. ITO Ward - 1(2) ITA No. 1106/JP/2018 dtd. 19/08/2020, [185 ITD 433 (Jaipur - Trib.)] Where assessee entered into agreement for purchase of flat and had made certain payment at time of booking of flat, stamp duty valuation or fair market value of immovable property was to be considered as on date of payment made by assessee towards booking of flat c) Sanjay Dattatraya Dapodikar v/s ITO Ward - 6(2), Pune ITA No. 1747/PN/2018 dtd. 30/04/2019(Pune) (Trib) Where date of agreement for fixing amount of consideration for purchase of a plot of land and date of registration of sale deed were different but assessee, prior to date of agreement, had paid a part of consideration by cheque, provisos to section 56(2)(vii)(b) being fulfilled, stamp value as on date of agreement should be applied for purpose of said section d) Ashutosh Jhavs. ITO Ward-2(5), Ranchi ITA No. 188/Ranchi/2019 dtd. 30/....
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....ell for the purposes of sec. 56(2)(x) of the Act. Since the assessee has paid the parts of consideration as per the terms and conditions of allotment through banking channels prior to the execution of Sale agreement, we are of the view that the provisos to sec. 56(2)(x) shall apply to the facts of the present case. Accordingly, the stamp duty valuation as on the date of respective Allotment letters should be considered for the purposes of sec. 56(2)(x) of the Act. Hence the AO was not justified in considering the stamp duty valuation as on the date of execution of agreement to sell. 11. On a perusal of record, we notice that the details of stamp duty value as on the date of respective allotment letters was not brought on record. Since we have held that the stamp duty valuation as on the date of respective allotment letters should be considered for the purpose of sec. 56(2)(x) of the Act, it is imperative on the part of the assessee to show that the actual consideration was equal or less than the stamp duty valuation as on the date of issue of respective allotment letters. Accordingly, we are restoring this issue to the file of AO for the limited purpose of comparing the actual sa....