TMI Blog2017 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 taxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exed to the purchase agreement, market value of the said property has determined by the stamp duty valuation office as per circle rate is ₹ 2,03,75,400/- and amounting to ₹ 10,18775/- has been paid towards stamp duty charges of this property. As assessee could not explained the difference of purchase price between the amount of consideration paid and the market value determined by stamp duty valuation office, he referred the matter to the District Valuation Officer (DVO) u/s 142A of the Act on 25-09-2012. The DVO, Mumbai furnished his valuation report dated 31-12-2012 and valued the property i.e. the cost of investment for purchase of this property at ₹ 2,43,40,000/-. Accordingly, the AO relying on DVO s record taken the real market value at ₹ 2,43,40,000/- as purchase consideration and added unrecorded investment at ₹ 1,48,40,000/-. Aggrieved, assessee preferred the appeal before CIT(A), who deleted the addition by observing in para 4.5,4.6,4.7 4.8 as under: - 4.5 I have perused the assessment order, submissions of appellant, remand report, facts and circumstances of the case carefully. The appellant has contended that the impugned commercial p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all: In such case, the appellant has bought the property for consideration less than the stamp duty value. The differential value cannot be taxed u/s 56(2)(vii)(b), since as on the relevant date of agreement i.e. 30.12.2009, as per amended provisions w. e. f. 1-10-2009, only the immovable property received without consideration is to be taxed, and hence the appellant's case of inadequate consideration does not fall within preview of said section. I also find that the said section has subsequently been amended by Finance Act 2013 to cover the cases of inadequate consideration also, but the same is effective from 1-4-2014, hence not applicable to A.Y. 2010-11 under consideration. The provisions of Sec. 50C cannot be invoked in hands of buyer. As regards to the applicability of Sec.6913, the appellant has contended that the said section can be applied when assessee expend amount on asset and not record the same in books of account, however he has not paid any amount over and above ₹ 95,00,000/- to the developer and further he has disclosed all the payment made to the developer. I find that even assuming that the said unauthorized structure did not exist, there is no co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st), Mumbai from the developer named M/s Kamla Landmarc Infra and recorded consideration of ₹ 95,00,000/- as per purchase agreement. However, as per purchase agreement the valuation of the property as per Stamp Duty Valuation Authority is ₹ 2,03,75,400/-. The AO referred the matter /property, to know the exact cost of investment to the purchaser of the said property, to the District Valuation Officer, Mumbai, who valued the cost of investment at ₹ 2,43,40,000/-. The assessee has also made a claim that assessee booked this office premises in December 2004 and paid earnest deposit of amount ₹ 7,00,000/- to Kamla Landmarc Infra. This position of assessee was rejected by CIT(A) treated this transaction pursuant to agreement dated 13-12-2009, hence falling in F.Y. 2009-10 relevant to A.Y.2010-11. The findings of CIT(A) on this issue is not challenged by assessee in his appeal and hence, the same has become final. 5. Now, the issue is 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? First of all, it is to be seen that what document or evidence is in the possession of the AO to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
