TMI Blog2019 (6) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... 08, it is well settled that a document on subsequent registration will take effect from the date when it was executed and not from the time of its registration. We refer here to page 5 of the P/B. In fact, we follow the above ratio in subsequent paras. In the instant case, there is no dispute that the Agreement for Sale is dated 10.09.2014. The Letter of Allotment dated 27.04.2012 can not be considered as the date of execution of agreement by any stretch of imagination. Immovable property is not conveyed by delivery of possession, but by a duly registered deed. Further, it is the date of execution of registered document, not the date of delivery of possession or the date of registration of document which is relevant. In the case of Alapati Venkataramiah v. CIT [ 1965 (3) TMI 21 - SUPREME COURT] , CIT v. Podar Cements Pvt. Ltd. [ 1997 (5) TMI 2 - SUPREME COURT] it is held that once the executed documents are registered, the transfer will take place on the date of execution of documents and not on the date of registration of documents. Section 56(2)(viii)(b)(ii) clearly stipulates that where any immoveable property is received for a consideration which is less than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Wing, in the building named as Metropolis, Andheri (West), Mumbai admeasuring area of 123.36 sq. mtrs (carpet area) for a consideration of ₹ 88,30,008/- (excluding stamp duty and registration/other charges), whereas the Government value for stamp duty purpose is at ₹ 1,88,44,959/-. Therefore, the AO asked the assessee to explain why the difference of ₹ 1,00,14,951/- shall not be treated as income from other sources u/s 56(2)(vii)(b) of the Act. The assessee filed a reply before the AO. However, the AO was not convinced with the said reply for the reason that the assessee had himself paid amount more than the Government valuation for the said property. The assessee had borrowed loans of ₹ 89,28,920/- from Dewan Housing Finance Corporation Ltd. (DHFL), Mumbai. Referring to the bank statement for the relevant period, the AO came to a finding that the actual cost of the property was more than what the assessee had shown. In the assessment order dated 30.11.2017, the AO has also noted that the assessee vide order sheet noting dated 16.11.2017 agreed for the proposed addition of ₹ 1,00,14,951/-. Since the Government value of the property is more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT in Saamag Developers Pvt. Ltd. [TS-26-ITAT-2018(DEL) order dated 12.01.2018] wherein it is held that registration u/s 17(1A) of the Registration Act, 1908 is a prerequisite to give effective section 53A on the Transfer of Property Act. Further reliance was placed by him on the decision in Anil D. Lohana [TS-466-ITAT-2017(MUM) order dated 25.09.2017], wherein it is held that the holding period of the property is to be reckoned from the date on which the assessee got right over the property by virtue of sale agreement. The Ld. CIT(A) finally noted that the assessee has never doubted the valuation of stamp duty, as he has never sought for another valuation with DVO u/s 50C(2) of the Act in the assessment as well as in appellate proceedings. In view of the above reasons, the Ld. CIT(A) dismissed the appeal filed by the assessee. 5. Before us, the Ld. counsel of the assessee files a Paper Book (P/B) containing (i) Written submissions filed with CIT(A), (ii) Photocopy of receipt of advance payment dated 27.04.2012 from Housing Development and Infrastructure Ltd. (HDIL) of ₹ 3,00,000/-, (iii) Photocopy of letter of allotment dated 27th April, 2012 issued by HDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 for AY 2014-15), Sanjay Kumar Gupta v. ACIT (ITA No. 227/JP/2018 for AY 2014-15), Anita D. Kanjani v. ACIT (2017) 79 taxmann.com 67 (Mumbai-Trib), DCIT v. Deepak Shashi Bhusan Roy (2018) 96 taxmann.com 648 (Mumbai-Trib). Further, the Ld. Counsel files a copy of the decision in Pr. CIT v. Vembu Vaidyanathan (2019) 101 taxmann.com 436(Bombay HC) and ACIT v. Shri Keyur Hemant Shah (ITA No. 6710/Mum/2017 for A.Y. 201314 dated 02.04.2019)(Mumbai ITAT). During the course of clarification, the decision in the case of CIT v. Balbir Singh Maini 86 taxmann.com 94 (SC) was brought to the notice of the Ld. counsel. In response to it, the Ld. counsel submits that in that case the issue was whether for want of permissions, entire transaction of development of land envisaged in Joint Development Agreement (JDA) fell through, there would be no profit or gain which arose from transfer of capital asset, which could be brought to tax u/s 45 r.w.s.48 and thus distinguishable from the present case. 6. On the other hand, the Ld. DRs submit that the Ld. CIT(A) has rightly confirmed the order of the AO on the reason that the advance payment of ₹ 3,00,000/- on 27.04.2012 cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the payment of part sale consideration on 28.03.2013 is duly mentioned in the sale deed dated 26.04.2013. The AO considered the date of transaction as the sale deed dated 26.04.2013. Accordingly, the AO made the addition as per section 56(2)(vii)(b) of the Act by adopting the stamp duty value of the property as purchase consideration and the difference was assessed to tax. The Tribunal held that in the facts and circumstances of the case, when the agreement to sell dated 28.03.2013 has not been held to be bogus then the transaction would be treated to have been completed on 28.03.2013 and consequently the same would not fall in the year under consideration. Once the transaction of purchase of property in question is completed in the preceding year, then the provisions of section 56(2)(vii)(b) of the Act cannot be invoked on such transaction. The Tribunal deleted the addition made by the AO. However, it made it clear that the AO is not remediless so far as the assessment of any income even for the earlier assessment year i.e. 2013-14. We find that section 56(2)(viii)(b)(ii) clearly stipulates that where any immoveable property is received for a consideration which is less tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the builder which is materially same as the terms of allotment and construction by DDA. Thus the case of the assessee in the instant case is distinguishable from the decision in Vembu Vaidyanathan (supra) relied on by the Ld. counsel. In the case of Shri Keyur Hemant Shah(supra), the assessee had acquired the rights in a duplex flat on 12th 13th floor front facing the road admeasuring 1961.75 sq.ft and terrace measuring 881.5 sq.ft. as per the attached layout plan along with 4 car parking in building known as Tapovan vide allotment letter dated 26.02.2008 issued by DSD Builders Developers Pvt. Ltd for total consideration of ₹ 371 lacs. The said allotment is not a conditional allotment and does not envisage cancellation of the allotted property, in any manner. Therefore, the assessee has acquired right in a specific property which is clearly earmarked in the layout plan. The full payment of the same has been made by the assessee by 24.07.2008, which is evident from assessee s letter containing payment details . Subsequently, agreement of sale has been executed in assessee s favour on 25.03.2010 which was nothing but mere improvement in assessee s existing right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the said property, and the said Flat and the Said Parking Space is hereinafter collectively referred to as the Said Premises for the price of ₹ 8830008/- (Rupees Eighty Eight Lakhs Thirty Thousand Eight Only), which prices shall be paid by the purchaser/s to the Developers as under: - (a) ₹ 300000/- (Rupees three lakhs Only) as earnest money deposit paid before the execution of these presents and ₹ 1466001 (Rupees Fourteen Lakhs Sixty six thousand and one only ) at the time of execution of these presents, making arrangement of ₹ 1766001/- (Rupees Seventeen lakhs sixty six thousand and only only) (the payment and receipt whereof the Developer doth hereby admit and acknowledge). (b) ₹ 7064007/- (Rupees Seventy Lakhs sixty four thousand seven only) being the balance of the purchase price to be paid by the Purchaser/s in the maner and by the instalments mentioned hereunder: (i) ₹ 883000/- (Rupees Eight Lakhs eighty three thousand only) on casting of the 3rd basement/slab i.e. plinth Slab: (ii) ₹ 6937861/- On casting of 3rd Floor slab: .......... .......... .......... .......... .......... .......... 7.4 Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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