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TMI Blog2023 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... at Gat No.164, Hissa No.6, Chinchwad. The agreement was for transfer of their rights in the land in lieu of receiving constructed area in the developed property. Since the assessee had not declared any capital gain on such transaction of transfer of right in the land to the developer, the assessee was called upon to explain as to why income u/s.45 of the Act be not computed. The assessee denied any liability towards capital gains by submitting that though the Agreement was entered into with M/s. Kunal Realty but there was some internal problem as a result of which the transaction could not materialize. It was further stated that possession of the land was still with him. The AO did not accept the assessee's contention on the ground that the development agreement executed on 22-01-2016 was duly registered on 25-01-2016 after paying due stamp duty. Considering the assessee's share at 1/3rd and no further detail coming to highlight the cost of acquisition, the AO treated the assessee's share of 1/3rd of stamp value at Rs.3,43,92,718/- as capital gain. The ld. CIT(A) did not provide any relief, against which the assessee has come up in appeal before the Tribunal. 4. Having heard the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, its entire responsibility with cost and consequences thereof shall be our's. We fully indemnify and keep indemnified the developer in such case and till complete clearance of such objection, we will not ask for any consideration either in cash or kind and it will not become due". 5. A perusal of the above clauses of the registered development agreement clearly indicates that the assessee along with other co-owners transferred development rights of the land to M/s. Kunal Realty. It was the obligation of the assessee to get the proper clearances and do the needful qua 7/12 extract and also in respect of exemption order. It is also clear that the developer agreed to discharge consideration in the nature of giving finally constructed units only on the complete fulfillment of the above conditions. The ld. AR contended that no possession of land took place pursuant to the development agreement because the above conditions could not be fulfilled by the assessee. 6. At this stage, it is pertinent to note that M/s. Kunal Realty deposited a sum of Rs.1.54 crore in the office of Senior Divisional Electrical Engineer towards estimated cost of work of shifting 110 KV tower line in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rate, there has to be some stage of transfer, if the deal is not called off, as is the case under consideration. Since the additional evidences have been placed on record for the first time and have some bearing on the issue, we are of the considered opinion that it would be just and fair if the impugned order is set aside and the matter is restored to the file of the AO. We order accordingly and direct him to decide this issue afresh in the light of additional evidences which the assessee has placed on record. Needless to say, the assessee will have liberty to lead any further evidence in his defence and be allowed reasonable opportunity of hearing in the fresh proceedings. 10. The only other ground pressed in this appeal is against the confirmation of addition of Rs.4,95,37,200/- made by the AO by invoking provisions of section 56(2)(vii)(b) of the Act. 11. The facts anent to this issue are that the assessee furnished a copy of Sathekhat (Sale deed) registered with Joint Sub Registrar, Haveli-17. As per this Sathekhat, the assessee purchased a piece of land at Sy.No.24, Balewadi, Haveli, Pune for a consideration of Rs.1.85 crore. Circle rate of the land was Rs.6,80,37,200/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself. All these facts clearly establish that the assessee did purchase the land at Balewadi at the declared consideration of Rs.1.85 crore. Section 56(2)(vii)(b) is patently attracted in this case as per which the difference between the stamp value and the declared purchase consideration is liable to be added in the hands of the assessee. 13. The ld. AR invited our attention towards the additional ground raised before the ld. CIT(A), as has been reproduced at page 3 of the impugned order, challenging the making of addition u/s. 56(2)(vii)(b) without making a reference to the Department Valuation Officer as required by the proviso after sub-clause (c) of section 56(2)(vii)(b). This shows that the assessee did raise the issue before the ld. CIT(A) about the stamp value of the property at this high level and hence the necessity to make a reference to the DVO. It further goes without saying that first appeal is a continuation of the assessment proceedings. The third proviso to section 56(2)(vii)(b) provides that where the stamp value of the immovable property is disputed by the assessee on the ground mentioned in section 50C(2), the AO may refer the valuation of such property to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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