TMI Blog2023 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... , it cannot be said that the AO had examined the issue of purchase of immoveable property and taken a plausible view by making no addition u/s 56(2)(vii)(b) when the issue was not even examined by the AO. Therefore this contention of the learned Counsel for the assessee is rejected. The assessee has been unable to justify his contention that no addition was warranted in the facts of the present case under Section 56(2)(vii)(b) - This contention raised by the learned Counsel for the assessee is, therefore, rejected. As per the facts noted by the Ld. PCIT in his order, the assessment in the present case was a limited scrutiny assessment for the purpose of examining the issue of cash deposits and purchase of property. Vis- -vis the issue of purchase of property, PCIT found the assessment order to be erroneous for the reason that the AO having not examined the applicability and invocation of the provisions of Section 56(2)(vii)(b) - Therefore, it cannot be said that Ld. PCIT had directed the entire assessment to be framed afresh or that the entire assessment was open before the AO even in the restored proceedings. AO in any case, could not have exceeded the limited brief being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred to as the Act ], for the Assessment Year 2015-16. 2. The grounds of appeal raised by the assessee read as under:- 1. That the Ld. Pr. CIT has erred in law in assuming jurisdiction under section 263 of the Income Tax Act on the ground that no inquiry has been conducted for the purchase of property by the assessing officer while passing order under section 143(3) of the Act 2. That the Ld. Pr. CIT has erred in law in assuming jurisdiction under section 263 of the Income Tax Act as the impugned assessment order is neither erroneous nor prejudicial to the interest of revenue. 3. That the Ld. Pr. CIT further erred in law and facts in not appreciating the detailed submission of the assessee dated 23rd December, 2019 in a right perspective. 4. That the Ld. Pr. CIT has also erred in law in setting aside the whole assessment order and directing the assessing officer to redo the assessment de- novo. 5. That the appellant seeks leave to add, amend, alter, abandon or substitute any of the above grounds during the hearing of the appeal. 3. At the outset itself, it was stated that the issue on which the revisionary power was exercised By the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceeded the claimed sales consideration by Rs.1,02,37,775/-(Rs. 1,61,38,775/- less Rs.59,01,000/-. 3. Thus, in the case of the assessee, it appears that provisions of section 56(2)(vii)(b)(ii) of the Act should attract as the assessee had purchased the aforesaid immovable property for a consideration which is less than stamp duty valuation of the property. The difference of Rs.34,12,590/- (being 1/3rd of assessee s share in total differential of Rs.1,02,37,775/-) was to be taxed in his hands. The aforesaid matter was not examined by the Assessing Officer while framing the assessment order. 5. Referring to the above, learned Counsel for the assessee stated that the assessee had purchased an immovable property alongwith with two other coowners, being 1/3rd owner of the same, and was found by the Ld. PCIT to have paid price which was far less than its Stamp Duty Value. The assessee s share of the purchase price paid being Rs.19,67,000/-noted by the Ld. PCIT, while his share of the Stamp Duty Value of the property being Rs.59,79,590/-. The difference of the two, i.e. Rs.34,12,590/-, being in excess of Rs.50,000/-, as per the Ld. PCIT was liable to be taxed in the hands of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made due inquiries relating to the issue of purchase of property by the assessee during the year and therefore the Ld. PCIT could not have held the assessment order passed as erroneous on account of non-inquiry by the AO of the impugned issue. 10. We are not convinced with the contention of the learned Counsel for the assessee. The inquiry of the AO was only a cursory inquiry calling for facts relating to the purchase of immoveable property by the assessee during the year. The only query raised by the Assessing Officer was asking for details of properties transacted into by the assessee, to which the assessee had supplied the copies of the agreements or deeds entered into. No other question or query was raised by the Assessing Officer. No query relating to the invocation of Section 56(2)(vii)(b) of the Act was raised by the Assessing Officer in the present case. Therefore, in the facts of the present case, it cannot be said that the Assessing Officer had examined the issue of purchase of immoveable property and taken a plausible view by making no addition u/s 56(2)(vii)(b) of the Act when the issue was not even examined by the AO. Therefore this contention of the learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of this sub-clause: Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property: 12. We are not convinced with this argument of the learned Counsel for the assessee also. The provision of law under which the assessee is seeking shelter i.e. the first and second proviso to Section 56(2)(vii)(b) of the Act, which requires the stamp duty value of the date of agreement to sale to be taken in place of the stamp duty value of the actual date of registration of sale only in the circumstance where the two dates are not the same and the consideration or a part thereof has been paid by modes other than cash on the date of agreement for transfer or prior to that. Which means that what the first and second proviso to Section 56(2)(vii)(b) of the Act envisage is a circumstance where the transaction of purchase of a property ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it transpires that the assessee had nothing further to say except what had already been stated vide his earlier replies. The same have been carefully considered but his contentions are not found acceptable in view of the following discussions:- i. The assessee has contended that since he, along with other co-Owners, had agreed to purchase the property way back in 2008 and the stamp duty rates were revised in 2011, the value of the property as per the revised rates of stamp duty cannot be considered for the purpose of purchase or sale of property. As per the first proviso to Section 56(2)(vii)(b) of the Act where the date of the agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of this section. However, the second proviso to the Section 56(2)(vii)(b) stipulates that the aforesaid first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been paid on or before the date of the agreement for the transfer of such immovable property. It is pertinent to mention here that the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee which effectively rules out the applicability of the first proviso. The assessee has not submitted any evidence to justify that the amount of consideration, or even a part thereof had been paid by him during the year 2008 or any other subsequent year till the property was finally purchased on 05.11.2014. In this backdrop, the contention of the assessee is not acceptable and the purchase consideration has to be computed as per Registered Deed' dated 05.11.2014. ii. The assessee has also relied upon certain case laws. But these do not address the same factual issue. In fact in one of the decision relied by the assessee i.e. case of Shri Sujauddian Kasimsab Sayyed in ITA No. 5498/MUM/2018 (ITAT Mumbai), it is observed that the Hon'ble Tribunal has confirmed the addition made u/s. 56(2)(vii)(b) of the Act dismissing the appeal of the assessee. Same is with decision in the case of Shri Trilok Chand Sain vide ITA No. 449/JP/2018. Hence these decisions are of no consequence with reference to the present matter. iii.. The assessee had also relied on the judgement in the case of Shri Hari Om Garg in I.T.A. No.342/Agra/2017. In the said case, the dispute is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 153(3) of the Act. 16. He, therefore, contended that it was clear that the Ld. PCIT had set aside the entire assessment order which he could not have done in the facts of the case where he had noted specific error in the order of the Assessing Officer. In this regard, he relied on judgement of Hon ble jurisdictional High Court in the case of CIT Vs. Budhilal Hiralal Rana, reported in (2004) 186 CTR 0647 (Guj.). 17. We have heard the contention of the learned Counsel for the assessee and we do not find any merit in the same. The order of the Ld. PCIT is very clear wherein he directs the Assessing Officer to pass the order afresh after duly examining the issue discussed by him in his order passed under Section 263 of the Act. Therefore, his order is very clear requiring the Assessing Officer to examine only the issue relating to the applicability of Section 56(2)(vii)(b) of the Act in the facts of the present case. Even as per the facts noted by the Ld. PCIT in his order, the assessment in the present case was a limited scrutiny assessment for the purpose of examining the issue of cash deposits and purchase of property. Vis- -vis the issue of purchase of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of provisions of Section 56(2)(vii)(b) of the Act was an error in the order of the Assessing Officer causing prejudice to the Revenue and accordingly had set aside the assessment order to the Assessing Officer to examine this aspect after giving due opportunity of hearing to the assessee and in accordance with law. It cannot be said in the light of these facts that the Ld. PCIT himself was not convinced whether the provisions of Section 56(2)(vii)(b) of the Act were applicable in the facts of the present case. On the contrary, the facts before him revealed that the provisions of Section 56(2)(vii)(b) of the Act were clearly applicable and accordingly in all fairness he had restored the issue to the Assessing Officer to give a fair and proper hearing to the assessee on this issue before making any addition to his income on this count. Therefore, this argument of the learned Counsel for the assessee is also rejected. 19. In view of the above, we hold that there is no infirmity in the order of the Ld. PCIT passed under Section 263 of the Act and the appeal of the assessee is liable to be dismissed. 20. In effect, the appeal of the assessee is dismissed. Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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