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2017 (2) TMI 113 - AT - Income TaxAddition on unrecorded/undisclosed income u/s 69B - whether the provisions of Section 69 B of the Act as well as Section 56(2) (Vii)(b) r. w. s. 50C of the Act will apply or not? - Held that:- What document or evidence is in the possession of the AO to prove that the assessee has paid the difference of value of agreement and stamp duty value in any other form of consideration to the extent of ₹ 1,08,75,400/- for making addition u/s 69B of the Act. We find from the facts of the case as well as the records of the case and else also the arguments of learned Sr. DR that there is no evidence in the possession of Revenue which proves that the assessee has paid over and above the value of agreement in any other form of consideration. Hon’ble Gujarat High Court in the case of Berry Plastics (P) Ltd. (2013 (8) TMI 9 - GUJARAT HIGH COURT) has held that the DVO’s report may be useful tool in the hands of the AO, nevertheless it is an estimation and without there being anything more cannot form basis for addition u/s 69 B of the Act. The burden to prove under statement is on the Revenue and in the absence of any evidence addition cannot be made. This view has been held by Hon’ble Supreme Court in the case of KP Varghese Vs. ITO (1981 (9) TMI 1 - SUPREME Court ). Secondly, a new provision as introduced by the finance bill 2013 w. e. f. 01-04-2014 of provisions of Section 56 (2) (vii) (b), wherein immovable property purchased/received for inadequate consideration, which is less than stamp value by 50,000 or more, than the difference between the stamp duty value and inadequate consideration shall be taxable in the hands of the individual or HUF as income from other sources. This amendment applies in relation to A.Y. 2014-15 and subsequent assessment years and up to 31-03-2013, addition cannot be made in the hands of the buyer as explained by the explanatory note to finance bill, 2013. There is no dispute as regards to the amount and date of registration that the property was registered only on 19-01-2010, which is much before the amendment in Section 56(2) of the Act. Even the provision of Section 50C r. w. s. 69 and 69B, i.e. the special provision for full value of consideration in certain cases creates a legal friction for taxing capital gains in the hands of seller and it cannot be extended for taxing difference between apparent consideration and valuation done by stamp valuation authorities as undisclosed investment. - Decided against revenue.
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