TaxTMI 
TaxTMI 
2024 (1) TMI 1567
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....s in filing the appeal cause on account of health issues faced by the Appellant is condoned. 2. Accordingly, we proceed to adjudicate the appeal on merits taking into the consideration the revised grounds of appeal filed by the Appellant vide letter dated 12/01/2023 which read as under: "1. The learned CIT(A) erred in confirming the order of Assessing Officer making addition of Rs 56,00,002/- u/s 56(2)(x) by not considering the Allotment letter dated 18/5/2010 (as modified by endorsement in 2014) as an Agreement without appreciating that said Allotment letter is also an Agreement for the purposes of first proviso to Section 56(2)(x)(b) and thus the learned A.O. erred in making addition by taking stamp value prevailing on the date of registration and hence the addition of Rs 56,00,002/- may be deleted. 2. The learned CIT(A) erred in confirming the order of Assessing Officer making addition of Rs 56,00,002/- u/s 56(2)(x) by taking share of Assessee in the property at 69.7 % on the basis of investment without appreciating that investment of both the co-owners is 50% and hence the entire addition of Rs 56,00,002/- cannot be sustained. 3. The learned CIT(A)....
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....e Immoveable Property'] was allotted to Sh. Pritam Ludhani and Smt. Vimla Ludhani. The Immovable Property had area of around 545 sq.ft., and was allotted by the Developer for a consideration of INR 64,86,000/- on making advance payment of INR 4,63,000/- by way of account payee cheque. In 2010 itself, it was mutually agreed between the parties concerned that the Appellant shall step into the shoes of Smt. Vimla Ludhani. A confirmation to this effect was issued by the developer vide endorsement letter issued by the developer in response to request letter, dated 03/05/2014, sent by the Appellant. The Appellant along with Mr. Pritam Ludhani starting making payments by way of cheque towards the purchase of Immovable Property in 2010. In support, the Appellant provided the details of various payments made to the developer towards purchase of the Immovable Property between 21/05/2010 and 20/07/2017 along with copy of bank statements and copy of the ledger account of the developer. It was submitted on behalf of the Appellant that tax at source was also duly deducted from the payments made for the purchase of Immovable Property in terms of Section 194IA of the Act. On the basis of the afore....
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....tment Letter the Appellant had agreed to make additional payment for the car parking. The Allotment Letter not only contained the description of the unit but also the attached terms and conditions which included the purchase consideration and timelines for making the payments. Therefore, in our view the Allotment Letter, which fixes the consideration for the purchase of the Immovable Property, is to be regarded as an agreement for the purpose of Section 56(2)(x) of the Act read with first and second proviso thereto. The Allotment Letter also acknowledged the receipt of INR 4,63,000/- as advance/part payment towards the purchase of the Immovable Property. It is also not disputed by the Revenue that payments to the developer towards purchase of the Immovable Property by way of account payee cheques were made by Shri Pritam Ludhani and the Appellant. In fact, the Assessing Officer has returned a finding that 69.95% of the purchase consideration was paid by the Appellant while balance consideration was paid by the Shri Pritam Ludhani. In the aforesaid facts and circumstances, we are of the view that the Appellant is entitled to claim benefit First and Second Proviso to Section 56(2)(x)....
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....of immovable co property is disputed by the assessee on grounds mentioned in - sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property for the purpose 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]." 11. Thus, the section prescribe that when the property has been purchased for inadequate consideration, as compared to the stamp duty value, same is liable to be addition for income under the head "income from other sources". However, under the proviso if prior to registration of the property, the assessee has entered into purchase agreement fixing the amount of consideration and also partly paid the amount of consideration by way of account payee cheque/draft etc, t....
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....tter can be taken as date of agreement of sale for the purposes ofsec.56(2)(x) of the Act. On the contrary, the Ld D.R placed his reliance on the decision rendered by another co-ordinate bench, which was relied upon by AO & CIT(A), viz., Sujauddian Kasimsab (supra). 8. With regard to the decision rendered in the case of Sujauddian Kasimsab (supra), the Ld A.R submitted that the said decision has been rendered on the basis of facts prevailing in that case. The assessee, in the above said case, had paid Rs.3.00 lakhs before the date of agreement, but 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, w....
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....ement 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 the agreement may be taken for the purposes of this subclause: Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property". 13. We further relied on following judicial pronouncement of coordinated benches of ITAT, Hon'ble High Court and Apex Court as under: xx xx 14-15 xx xx 10. Accordingly, following the above said decision, we hold that the respective allotment letters issued to the assessee should be considered as "Agreement to sell" 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 du....