TMI Blog2022 (9) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... e the addition made by A.O and confirms that assessee is entitled to the benefits of proviso to Section 56(2)(vii)(b). - ITA No. 56/Mum/2021 - - - Dated:- 5-9-2022 - SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER For the Appellant : Sh. Ajay Singh For the Respondent : Sh. Pramod Nikalje ORDER PER GAGAN GOYAL, A.M: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-33, Mumbai [hereinafter referred to as ( CIT(A) ] dated 11.02.2020 for the Assessment Year (AY) 2014-15. The assessee has raised the following grounds of appeal: Sr.No. Grounds of appeal Tax effect relating to each Ground of appeal (see note below). 1. On the facts and circumstances of the case and law applicable thereto, the Ld. CIT(A) erred in upholding the order of the AO without considering the merits and fact pattern of the case. 2. On the facts and circumstances of the case and law applicable thereto, the Ld. CIT(A) erred in upholding the addition made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt. 3. The AO further states that the purchase agreement shows that the assessee started making payments to the Developer on 17/10/2011 and till 29/01/2013, he had paid Rs. 48,50,000/- from his Bank a/c of Bank of Maharashtra to Sai Sadgure Developers. However, there was no separate agreement for the said payments/fixing of purchase price produced by the assessee. 4. Since the assessee being an individual has received a property vide Agreement dated 23/07/2013 for consideration of Rs. 70,00,000/- (part payment done till that date Rs. 48,50,000/-) and the market value of the property was Rs. 1,00,28,500/- his attention was drawn to the provision of section 56(2)(vii)(b). The assessee was required to show cause why the difference between the consideration and the stamp duty value (i.e. 1,00,28,500 - 70,00,000 = 30,28,500/- should not be added to his income u/s. 56(2)(vii)(b) of the I.T. Act . 5. In response, the assessee contended that the value as on the date fixing the price for purchase i.e. 17/10/2011 (date of allotment letter) should be adopted. He stated that the market value in October 2011 will be the agreement value of Rs. 70,00,000/- only. Hence, the AR vehemently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready reckoner sheet attached with the valuation report issued by B.L. Jain Associates . In the assessment proceedings, allotment letter of flat no. 501 in the same building in the name of assessee's wife Mrs. Majula Mehta was wrongly submitted. The allotment letter in the name of appellant for flat no. 502 was filed during the appellate proceedings. In case of assessment of wife for AY 2014-15, no such addition was made. 8. A remand report was called for, from the AO, vide this office letter dated 23/05/2018. In response, the AO, vide his letter dated 16/09/2019, has submitted his remand report has stated given below : a) The submission made by the assessee which was enclosed with your letter dated 23/05/2018 has been duly considered. The assessee has just submitted the allotment letter dated 17/10/2011 issued by the builder M/s. Said Sadguru Developers, in the name of the assessee. The allotment letter was submitted during the course of assessment proceedings, but it was issued in the name of M/s. Manjula S Mehta (his wife). b) It is pertinent to- mention here that the addition made by the A.O. was on account of difference in stamp duty valuation vis-a-vis agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the agreement for the transfer of such immovable property . In this case, the allotment letter cannot be considered as Agreement for sale and purchase as the assessee has entered into agreement with builder on 23rd July, 2013 as per the copy of agreement on record . e) Hence, the AO has rightly invoked sec. 56(2)(vii)(b) and accordingly the difference between the stamp duty value/Market Value of Rs. 1,00,28,500/- and the agreement value of Rs. 70,00,000/- i.e. Rs. 30,28,500/- is correctly added to the income of the assessee. 9. A copy of the remand report was forwarded to the appellant vide this office letter dated 25/11/2019. In response, the appellant did not file any rejoinder till date. This office has issued notices vide letters dated 25/11/2019 fixing hearing on 11/12/2019. In response, the appellant asked for an adjournment. The case was adjourned on 13/01/2010. The appellant asked adjournment for 10 more days and the case was adjourned to 24/01/2010. However, there was neither any compliance on 24/01/2010 nor any further request to adjourn the case. No response from the appellant was received till date. In view of above, it is deemed proper to dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 13. We further relied on following judicial pronouncement of coordinated benches of ITAT, Hon ble High Court and Apex Court as under: a) Siraj Ahmed Jamalbhai Bora vs. ITO Ward - 1(3) (1) ITA No. 1886/M/2019 dtd. 28/10/2020, (Mum.) (Trib.): Date of registration irrelevant for Sec 56(2)(vii)(b) as substantial obligation discharged on date of agreement. b) Radha Kishan Kungwani vs. ITO Ward - 1(2) ITA No. 1106/JP/2018 dtd. 19/08/2020, [185 ITD 433 (Jaipur - Trib.)] Where assessee entered into agreement for purchase of flat and had made certain payment at time of booking of flat, stamp duty valuation or fair market value of immovable property was to be considered as on date of payment made by assessee towards booking of flat c) Sanjay Dattatraya Dapodikar v/s ITO Ward - 6(2), Pune ITA No. 1747/PN/2018 dtd. 30/04/2019(Pune) (Trib) Where date of agreement for fixing amount of consideration for purchase of a plot of land and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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