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2021 (5) TMI 631 - AT - Income TaxIncome from other sources - value adopted by the AO of the property purchased by the assessee will be stamp duty - HELD THAT:- Since, at the time of execution of agreement to purchase, there was no provision in the Act for taking stamp duty as the value of the property for determination of capital gains, in case the consideration is paid less than the stamp duty value, therefore, the assessee did not apprehend any such action by the assessing officer. The assessee made part payment through cheque as per the terms of the agreement. In my view, mere mentioning of the date of the very next day on the cheque did not make any difference. A provision was made to take the value of consideration as stamp duty value if the consideration paid is less than the stamp duty value. However, saving clause by second proviso has been made applicable stating that, if the consideration has been paid as per value mentioned in the agreement to purchase, then the amount mentioned in the agreement can be taken the amount of consideration if the consideration referred to in the agreement or a part thereof, is paid on or before the date of agreement. This provision did not exist at the time of entering into the agreement to purchase in question. The case of the assessee is self-explanatory. The registry was done on 28-05-2013. However, the part payment was made by cheque on the next day of execution of agreement i.e. 20.07.2012, which in our view, was towards the fulfillment of the terms of the contract. Therefore, the Ld. AO is not justified in taking a hyper technical view, whereas, the facts of the case show that there is no malafide or false claim on the part of the assessee. The provisions of section 56 of the Act are for the purpose of the assessment of capital gains. Such deeming provisions do not suggest that the assessee had actually paid the consideration more than that was mentioned in the agreement or sale deed. The impugned addition made by the Ld. AO on the basis of deeming provisions and taking the difference as unaccounted income of the assessee is not sustainable in the eyes of law. Accordingly, the same is ordered to be deleted. Appeal of the assessee stands allowed.
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