TaxTMI 
TaxTMI 
2025 (10) TMI 853
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.... of Rs.8,84,680/-. The Assessing Officer thereafter issued statutory notices u/s 143(2) and 142(1) of the Act in response to which the AR of the assessee filed the requisite details from time to time. The Assessing Officer completed the assessment u/s 143(3) r.w.s. 147 of the Act determining the total income of Rs.19,60,971/- wherein he made addition of Rs.10,76,291/- by invoking the provisions of section 56(2)(vii)(b) of the Act by observing as under: "4.6. Conclusion drawn. A show cause notice dated 13-11-2023 was issued to the assessee asking to file her objections on or before 20-11-2023. In the show cause notice, it is proposed to make addition the difference between the stamp duty value (Rs.57,31,291/-) and purchase value of the property (Rs.46,55,000/-) which works out to Rs.10,76,291/- as income under the head Income from Other Sources u/s 56(2)(vii)(b) of the IT Act. In response to the show cause notice, the assessee filed the information in support of short term capital gain admitted on sale of flat (computation, customer ledger, first page of deed; possession certificate etc) but the assessee has not filed any objection against proposed addition u/s 56(....
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....e purchase deed with the developer and then sale deed was executed between the appellant and the purchaser. 3. The appellant had purchased property in 2012 for Rs.46,55,000/-, but the registration of purchase deed was not made in the same year itself. The purchase deed was registered by the appellant in 2016 and accordingly stamp duty value of 2016 was entered on purchase deed amounting to Rs.57,31,291/-. 4. In case, the purchase deed had been registered in year 2012 itself the stamp duty value of the property would have been Rs.28,87,167/- (Rs.43,150/- per sq. mt. *66.91sq. mt.) We have attached herewith the rates of ready reckoner applicable to the property under consideration. (Annexure 4) Also, index II of the property is attached for considering the area. (Annexure 5) 5. We have computed capital gain considering the actual purchase value and sale value as per the registered deeds. Hence, indirectly the difference amount has been taken into consideration as capital gain. We are attaching herewith computation sheet for the return filed for the AY 2016-17 (Annexure 6) 6. Here the assessing officer has considered the difference between the sale ....
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....een paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property. 4.4 This section came into the effect om 01.04.2014 as per the finance act 2013. Therefore the section raised by the appellant that section 56(2)(vii)(b) is not attracted in her case, is hereby ejected. Therefore, I am of the considered view that the AO has rightly added difference in the computation of the SRO value of the property and the fair market value (as claimed) based on detailed factual and legal evidence. The evidence furnished by the appellant before me in the form of reply do not carry the factual weight and are not found to be substantial enough to controvert the assessing officer's findings. Consequently, relating to the issues stands dismissed. 5. In the result, the appeal stands dismissed." 4. Aggrieved with such order of Ld. CIT(A) / NFAC, the assessee is in appeal before the Tribunal by raising the following grounds: 1) The learned assessing officer erred in the facts and circumstances of the case, and as per the law, in reopening the case, by issuing notice on 20.03.2023 under section 148 in person by the Jurisdic....
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..... Accordingly the same is dismissed as 'not pressed'. 6. So far as the other grounds are concerned, the Ld. Counsel for the assessee made two-fold arguments. The first argument of the Ld. Counsel for the assessee is that while the Assessing Officer in the order passed u/s 143(3) r.w.s. 147 of the Act has determined the total income at Rs.19,60,971/-, however, in the computation statement he has determined the same at Rs.31,97,261/- which is not correct. 7. The second plank of his argument is that the assessee has purchased the property during the year 2012 for a consideration of Rs.46,55,000/- but the registration of purchase deed was not made in that year. The purchase deed was registered by the assessee in 2016 and accordingly the stamp duty value of 2016 was entered in purchase deed amounting to Rs.57,31,291/-. He submitted that if the deed has been registered in the year when the property was actually purchased, the stamp duty value of the property would have been lower than the stated amount of Rs.57,31,291/-. Referring to the ready reckoner rate he submitted that had the purchase deed been registered in 2012 itself, stamp duty value of the property would have been Rs.28....
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....0. The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A) / NFAC. 11. I have heard the rival arguments made by both the sides and perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC and the paper book filed on behalf of the assessee. I have also considered the various decisions cited before me. I find the Assessing Officer in the instant case, invoking the provisions of section 56(2)(vii)(b) of the Act made addition of Rs.10,76,291/-, the reasons of which have already been reproduced in the preceding paragraphs. I find the Ld. CIT(A) / NFAC sustained the addition made by the Assessing Officer, the reasons of which have also been reproduced in the preceding paragraphs. It is the submission of the Ld. Counsel for the assessee that since the assessee on the basis of allotment letter determining the cost price at Rs.47,97,557/- has made substantial payment of Rs.34,56,438/- before 31.03.2013 and merely the registration was not done, therefore, the provisions of section 56(2)(vii)(b) of the Act are not applicable. 12. I find some force in the arguments of the Ld. Counsel for the assessee. The contents of the allotment le....
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....y of registration. It was thus submitted that the transactions entered prior to the FY 2013-14 would be governed by the pre-amended provision which triggers the applicability of such provision only where there is a total lack of consideration and does not cover a case of inadequacy in purchase consideration. 7. We find merit in such plea advanced on behalf of the assessee. It is not in dispute that purchase transactions of immovable property were carried out in FY 2011-12 for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee." 16. I find the ....
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....ansferred in his favour and, consequently, some right of the vendor is extinguished. 13. Explanation 2 to Section 2(47) of the Act was added by Finance Act, 2012 with retrospective effect on 1.4.1962 and, consequently, the said provision would be applicable. The said explanation clearly provides that transfer of an asset includes disposing of or parting with an asset by way of an agreement. 14. In the light of the aforesaid provision, it is apparently clear that the moment an agreement to sell is executed between the parties and part consideration is received, the transfer for the purpose of Section 50C of the Act takes places and computation under Section 48 of the Act will start accordingly, for the purpose of calculating the capital gains under Section 45 of the Act. From the aforesaid, it is apparently clear that the transfer of the property took place in the year 2001 when the provision of Section 50C of the Act was not in existence. Consequently, the Assessing Officer was not justified in making the reassessment and computing the capital gains by invoking the provision of Section 50C of the Act, which was clearly not applicable in the assessee's case." ....
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....d a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee." 9. In the light of the above, if we peruse the facts of the present case then it would reveal that originally the assessee has entered into agreement for purchase of the above flat with the developer in 2010. She has made complete payments up to October 2012, thereafter, she got the possession on 09.01.2013. She installed her electricity connection in her name. All these factors would indicate that transfer within the meaning of Section 2(47) of the Act had completed. Only Conveyance Deed has been registered during the accounting period relevant to AY 2015-16. Once it is construed that transfer has been completed in the year 2013 itself then no deemed gift u/s 56(2)(vii)(b) of the Act is to be determined in....
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....o. 585/9, Sandesh Society Near Salisbury Park, Market Yard, Pune 37. SUB: Allotment Letter for Apartment No. 301 of 'B' Building at our scheme GINI VIVIANA situated at S.No.38/1, Near Mitcon College situate at Balewadi of City of Pune Dear Sir/Madam, Welcome to GINI VIVIANA. Hope this letter finds you in good health. We, Gini Group, invite you to take the second step towards completing your dream home. This is to confirm and record that we have agreed to sell and you have agreed to purchase Apartment No. 301 on 3rd Floor of Building "B" admeasuring total area of 720 Sq. ft Carpet + 105 Sq. ft. Terrace or thereabouts along with one open & one covered car parking space at our scheme 'GINI VIVIANA'. We have received a sum of Rs. 2,56,438/- (Including Service Tax) towards booking amount/deposit by cheque/s bearing No. 000004 dated 22/02/2012 drawn on Kotak Mahindra Bank. The total cost of the apartment and the payment schedule is annexed herewith. You have agreed to pay the described lumpsum price of the above-said apartment as per the payment schedule attached herewith. It is specifically agreed by and between us that time for payment of installment is the essence of....
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....O00001/00058/11-12 Co-Allotees : Basic cost 3996250 Discount: 0 AdjustmentAmount : 0 Net Basic Cost : 3996250 Cost breakup Basic Cost + Extra Charges + Other Charges(Adhoc) + Taxes 3996250 + 0 + 79200 + 152346 Total cost without tax : 4734200 Total cost with tax : 4886546 Payment plan VIVIANA FINAL - (GINI VIVIANA/C/Plan-B) Due as on 17-Nov-2023 4886546 (100%) Basic : 4734200 + Tax: 152346 Received till 17-Nov-2023 4886546 (100%) Basic : 4734200 + Tax: 152346 Balance as on 17-Nov-2023 0 Advance Basic : 0 + Tax: 0 Total Due (with Future Bills) 0 Basic : 0 + Tax: 0 Property details Unit No Block/Tower Floor Carpet Amount 143A-COVERED Vehicle Parking (COVERED) B BLDG 3 0.000 0 143-COVERED Vehicle Parking (COVERED) B BLDG 0.000 0 301 Unit (Flat) B BLDC 720.000 3996250 Date Particulars Doc Type Debit Credit Balance 22/02/2012 Doc No .: 301/0004477/001 Booking Due :22/02/2012 (Total Basic: 250000.000 Total Tax: 6438.000) INV 256,438.00 256,438.00 D 22/02/2012 BEING AMOUNT RECEIVED AGAINST RESERVATION OF UNIT MR No.REC0001/00080/11-12 (Basic:250000.000 Tax:6438.000) Inst No:000004 Inst Dt.21/02/2012 Drawn On:KOTAK MAHINDRA BANK PUNE Typ....
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....28.000 Tax:20372.000) Inst No:000013 Inst Dt.12/06/2013 Drawn On:KOTAK MAHINDRA BANK PUNE Type: Cheque BRS Date: 04/07/2013 RECEIPT 700,000,00 861,234.00 D 26/10/2013 Doc No .: 301/0004477/011 On or Before Completion Flooring Due 26/10/2013 (Total Basic: 279300.000 Total Tax: 8631.000) INV 287,931.00 1,149,165.00 D 21/06/2014 Doc No:301/0004477/012 On or Before Grant of Possession Due :21/06/2014 (Total Basic: 186200.000 Total Tax: 5754.000) INV 191,954,00 1,341,119.00 D 256,438.00 D 462,101.00 D 1,181,927.00 D 1,613,823.00 D 2,045,719.00 D 1,000,000.00 1,045,719.00 D 545,719.00 D 977,615.00 D Doc No.301/0004477/007 On or Before Casting of 7th Slab Due 01/11/2012 (Total Basic: 418950.000 Total Tax: 12946.000) 1,409,511.00 D 1,000,000.00 409.511.00 D Doc No .: 301/0004477/008 On or Before Casting of 9th Slab Due :06/12/2012 (Total Basic: 418950.000 Total Tax: 12946.000) 841,407.00 D 1,273,303.00 D 1,561,234.00 D 700,000,00 861,234.00 D 1,149,165.00 D Doc No:301/0004477/012 On or Before Grant of Possession Due :21/06/2014 (Total Basic: 186200.000 Total Tax: 5754.000) 1,341,119.00 D GINI CITICORP....