TMI Blog2022 (12) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement fixing the amount of consideration for transfer of immovable property and the date of registration are not same, the stamp duty value as on the date of the agreement may be taken. The provisions of clause (b) to section 56(2)(vii) were amended by the Finance Act, 2013 w.e.f. 01/04/2014. CIT(A) in the impugned order referred to the Memorandum to the Finance Act, 2013 explaining the reason for amending the provisions of section 56(2)(vii)(b) - The purpose for introducing proviso to clause (b) to section 56(2)(vii) of the Act was to avoid taxable differential arising due to time gap between the booking of a property and registration of sale deed. In the case PCIT vs. Vempu Vaidyanathan [ 2019 (1) TMI 1361 - BOMBAY HIGH COURT] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee has field written submissions giving the gist facts and the controversy involved. 3. Dr. K. Shivram appearing on behalf of the assessee submitted that during the financial year 2010-11 the assessee had booked property in a building known as Shrikant Chambers -II , Chembur at a total consideration of Rs.2.60 crores. The Developer issued allotment letter dated 19/05/2010 wherein the specific number of the property Unit No.901 was allotted. The allotment letter also mentioned the schedule of payment. The assessee had made initial payment of Rs. 10.00 lacs at the time of allotment. Thereafter, installments were paid on behalf of the assessee to the developer by the parents of the assessee through various cheques. The ld.Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld.Counsel for the assessee submitted that the sale consideration agreed in the letter of allotment can be treated as an agreement for this purpose. Any agreement between the parties even if unregistered but preceded by a part payment of consideration through banking channel would suffice requirement of this proviso. In support of this submission reliance was placed on the decision in the case of PCIT vs. Vembu Vaidyanathan 413 ITR 248 (Bom). 3.1 The second proposition put forth by the ld.Counsel for the assessee, without prejudice to the primary submission is, that the date of allotment of immovable property is 19/05/2010. The last payment was made by the assessee on 17/12/2012. The stamp duty value of the property on the date of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently supported the findings of CIT(A) in upholding the date of allotment as the date of agreement. 4. Per contra, Smt. Shailaja Rai representing the Department vehemently defended the assessment order and prayed for reversing the findings of CIT(A). 5. We have heard the submissions made by rival sides and have examined the orders of authorities below. It is an undisputed fact that letter of allotment was issued to the assessee by Shrikant Studios Pvt. Ltd. on 19/05/2010. The same is at page 16 to 18 of the paper book. The assessee had paid Rs.10.00 lacs at the time of allotment and the remaining amount of consideration was paid in installments. The parents of the assessee had made payment of the entire sale consideration in installme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to time gap between the booking of a property and registration of sale deed. The Hon'ble Jurisdictional High Court in the case PCIT vs. Vempu Vaidyanathan (Supra) has held that for computing capital gain tax, the date of allotment of flat would be the date on which the purchaser of flat is stated to have acquired property. In the instant case, on the date of allotment the building was under construction and even on the date of registration of sale deed the assessee had not taken possession of the immovable property. The assessee had acquired right in the ownership of flat at the time of issuance of allotment letter. Therefore, in the facts of the case stamp duty value as on the date of allotment of flat is relevant. 6. The CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f property as per stamp duty ready reckoner rate on date of the fixing the consideration is Rs.2,54,84,716/-. Agreement value of the property purchased is Rs.2.60 crores and it is higher than the stamp duty value of Rs.2.54 crores on date of the agreement fixing the amount of consideration for the transfer of immovable property. Further, in terms of proviso to the section, payment of consideration has been made by the appellant before the date of the agreement. In view of the above, the provision of the Section 56(2)(vii)(b) is not applicable to the appellant. The A.O. is directed to delete the addition of Rs.5,13,25,000/-. This ground is allowed. 7. We concur with the findings of the CIT(A), hence, the same are upheld and the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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