TMI Blog2022 (11) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... constructed in future time. CIT(A) had explained in detail that if such transaction are treated as transfer by notionally assigning value then the benefit of indexation and benefit of Sec. 54 etc. to be given to the assessee. In the light of the above facts and circumstances, we don t find any infirmity in the decision of CIT(A). Accordingly, both the grounds of appeal of the Revenue are dismissed. - ITA No. 1880/Mum/2020 - - - Dated:- 9-5-2022 - SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER And SHRI AMARJIT SINGH , ACCOUNTANT MEMBER Appellant by : Jayant Bhatt Respondent by : B. K. Bagchi ORDER PER AMARJIT SINGH , AM : The present appeal filed by the revenue and directed against the order passed by the CIT(A)-58, Mumbai, which in turn arises from the order passed by the A.O u/s 143(3) of the Income Tax Act, 1961, for A.Y.2016-17 dated 30.12.2018. The revenue has raised the following grounds before us: 1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs.2,42,77,500/- made u/s 56(2)(vii) of the I.T. Act, being difference in market value and agreement value. 2. Whether, on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned flats. The ld. counsel contended that originally assessee had booked flat No. 4707 and the booking was cancelled because of high restriction as permission was not granted for constructing building up to 47th storey. Therefore, the booking was shifted to flat No. 3907 of saleable area of 3341 sq. ft. It is further submitted that construction of the flat could not be materialized, therefore, the assessee was allotted a flat in the other project by the name of Sky Forest without any change in the terms of purchase. However, the formal agreement for finally allotted flat was entered into on 04.05.2015. It is also submitted that there was no change in the purchase price as per the flat allotted in 2010. The ld. Counsel further submitted that the booking of the flat No. A3 3405 Sky Forest was dated back to 24.09.2010 when the assessee had made booking of flat No. 4707 for an agreement value of Rs.495,30,000/-. It was the same contract except constructed premises to be replaced and there was no new agreement made by the assessee. The ld. counsel has also contended that if the AO treat the same as transfer of right to receive residential property originally allotted against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fference in stamp duty valuation and the prices paid by the assessee as income u/s 56 of the I.T. Act. However, the ld. CIT(A) has considered the complete facts of the case and the circumstances under which the assessee was offered alternative flat by the buyers. The relevant part of the decision of ld. CIT(A) is reproduced as under: 6.2 The assessee had made booking for purchase of proposed residential flat to be constructed by India Bulls Group in the project named in India Bulls Sky Suites. The Flat booked was no. 4707 measuring 3302 Square Feet. The assessee paid an amount of Rs. 72.11 lakhs at the time of booking. The assessee further made payments in F.Y. 2010-11 thereby making total payment of Rs. 5.08 Cr. 6.3 Subsequently, vide letter no. dated 14.11.2013 the developer showed its inability to provide to the appellant flat. The developer in lieu of the said of the said flat offered Flat No. 3907 measuring 3314 sq. Feet. The appellant paid an addition sum of Rs.8.46 lakhs on 26.05.2014. 6.4 The Assessing Officer treated this shifting of flats as transfer. The Assessing Officer took the difference in Stamp Duty Valuation and the price paid by assessee as incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in existence) by notionally assigning value to this right, it would put many buyers in a 6.11 Moreover, even if we treat such transactions as transfer then the benefit o indexation has to be given and benefit of section 54 etc. has to be given as claimed by assessee (sighting many judicial pronouncements). 6.12 The Assessing Officer has taken the value of transfer equal to stamp duty valuation. However, normally the stamp duty valuation is for the existing property. The same value is taken when the document is registered for booking a future flat also. However in my opinion the value of existing flat and value of a future flat cannot be same. This can be understood with the help of an example:- A person buys a flat for says Rs. 1Cr. Another person books an identical flat. In the registration of both the transaction the authorities will take the same stamp duty value. : However, the value in first transaction would be different from value in second transaction because in second transaction, the buyer will get possession of flat after laps of time. Whereas, the first buyer would be enjoying his property from the day one. Secondly, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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