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2024 (5) TMI 907 - ITAT MUMBAIAddition made u/s. 69/69B - difference between the stamp duty value and the sale consideration with respect to purchase of property - as per assessee impugned transaction which is part of a family settlement does not amount to "transfer"- HELD THAT:- As in the case of Dinesh Jain HUF [2012 (10) TMI 158 - DELHI HIGH COURT] has considered a similar issue of addition under section 69B of the Act where it has been held that the burden of providing satisfactory explanation to the AO by the assessee regarding the amount in excess of what is recorded in the books of accounts would arise after the AO first finds that the assessee has expended more that what is recorded in the books of accounts. From the perusal of the materials, we notice that the AO has not brought on record any evidence to support that the assessee has expended more than what is recorded in the books and has made the addition based on the valuation for stamp duty purposes. Therefore, we are inclined to agree with the contention of the assessee that addition towards the impugned transaction u/s 69B of the Act could not have been made without the AO recording a finding that the assessee has spent more amount towards purchases than what is recorded in the books of accounts. Addition u/s 56(2)(x) - The section is applicable to individuals and HUF and the assessee being a company the said section is not applicable. The legislature by subsequent amendment in Finance Act, 2017 introduced section 56(2)(x) to bridge this lacuna in the statute covering all types of assessee’s. However, it is relevant to notice that section 56(2)(x) is applicable only from AY 2017-18 and therefore, the addition towards the impugned transaction which happened during the year under consideration could not have been taxed under section 56(2)(x) of the Act. Revenue's contention that the assessee's name is not appearing in the family settlement agreement -There is merit in the submission the assessee company is part of the settlement agreement though not specifically mentioned in the agreement and that the impugned transaction took place consequent to the family agreement. It is also relevant to notice that in the case of Kay ARR Enterprises & Ors. [2007 (7) TMI 171 - MADRAS HIGH COURT] while considering a similar issue has held that the transaction under a family settlement agreement do not amount to transfer and that the SLP filed by the Department against the said case has been dismissed by the Hon'ble Supreme Court. Therefore, in our considered view on this count also the addition made towards the impugned transaction is not tenable. Addition towards Income from House Property - AO made the addition based on the information received from the society in response to notice u/s 133(6) of the Act stating that the impugned property could fetch a rent of Rs. 33,000/- per month - contention of the assessee is that for the purpose of deemed income from House Property it is the Municipal Ratable Value that needs to be considered and not the rent which the property is expected to receive by letting out - HELD THAT:- The additional evidence now submitted by the assessee in terms of ratable value fixed by Mumbai Municipal Corporation goes to the root of the issue. For a proper adjudication of the issue and for substantial cause, the additional evidence is admitted and taken on record. Since the lower authority did not have an opportunity to examine the additional evidence now submitted by the assessee we deem it fit to remit the issue back to the AO for fresh consideration. The AO is directed to examine the evidence submitted by the assessee and decide in accordance with law keeping in mind the decision of the Co-ordinate Bench in the case of Abhijit Rajan [2011 (4) TMI 1363 - ITAT MUMBAI]
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