9911796707
TMI Blog2023 (12) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... ther and are decided by common order to avoid conflicting decision. For appreciation of facts, facts in ITA No.333/SRT/2023 is treated as "lead" case. The assessee has raised the following grounds of appeal:- "1. That on facts and merits of the case and in law the learned PCIT-1, Surat has erred in passing an order u/s 263 of the Act by holding the order passed u/s 143(3) r.ws. 143(3A) and 143(3B) of the Act to be erroneous in so far as it is prejudicial to the interest of the revenue. 2. That on facts and merits of the case and in law the learned PCIT-1, Surat has erred in passing the impugned order merely on the basis of change in opinion on an issue which was already thoroughly scrutinized by the learned AO while conducting assessment u/s 143(3) of the Act. 3. That on facts and merits of the case and in law the learned PCIT-1, Surat has erred in initiating provisions of section 263 and passing order u/s 263 without selecting any one of the clauses of Explanation-2 of section 263(1), in which the case of the appellant falls. 4. That on facts and merits of the case and in law the learned PCIT- 1, Surat has erred in misinterpreting the provisions of section 56(2)(x)(b)(B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores - Rs. 7.64 crores). Thus, Rs. 19,99,515/- was required to be added in the total income of assessee under section 56(2)(x) of the Act. On the basis of such observation, the Ld. PCIT took his view that order passed by the Assessing Officer is erroneous in so far as prejudicial to the interest of Revenue. The Ld. PCIT exercised his jurisdictional power and issued show cause notice under section 263 dated 07.02.2023 to the assessee. 4. The assessee filed his reply on 15.02.2023, 21.02.2023 & 23.02.23 respectively. The contents of various replies of assessee is extracted by Ld. PCIT in para-4.2 from pages 3 to 7 of his impugned order. The assessee in reply, regarding said show cause notice, submitted that assessee along with 9 other persons had purchased agricultural land ad measuring 16646 square meters at District Surat, Taluka Adajan Village, Moje Palanpor, vide sale deed dated 07.03.2018. As purchase was made on the basis of agreement dated 30.08.2010 and agricultural land was purchased by all the co-owners who are family members and relative, out of which some of the co-owners. Though all the family members were not the party in the agreement to sale in the year 2010, enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not acceptable on the basis of facts of the case has not made any payment on or before 30.08.2010 by way of account payee cheque or transferred of said immovable property. Thus, benefit of 1st and 2nd proviso to Section 56(2)(x)(b) cannot be provided to the assessee. The Stamp Duty Valuation Authority valued the property at Rs. 10.48 crores and deeming provision of Section 56(2)(x)(b) of the Act was attracted in the present case. The assessee's share of 7% of the property so proportionate addition of difference in the sale value and the value determined by stamp valuation authority, is to be made. The contention of assessee was that purchase cost of property cannot be different for four co-owners, who are a part of agreement and for remaining six co-owners who are not a party were without any merit. The person, who were part of agreement on 03.08.2010 are eligible for benefit of first and second proviso to section 56(2(x)(b) but the owners who are not the part of said agreement cannot get any benefit and the different in sale consideration to determine by Stamp Valuation Authority vis-à-vis declared in the sale deed is to be added in the taxable income under the head "o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 142(1). The Assessing Officer on his satisfaction accepted the returned income without making any variation in the returned income. Thus, the assessment order passed after due consideration and application of mind which cannot be branded as erroneous and prejudicial to the interest of Revenue. The assessing officer while passing assessment order took reasonable and legally sustainable view. 8. The Ld. AR for the assessee submits that on almost on similar set of fact, Mumbai Tribunal in the case of Sulochana Saijan Modi Vs. ITO [2023] 152 taxmann.com 56 (Mum-Trib.) held that where assessee was joint holder of the property with her son and submitted allotment letter and copy of cheque during assessment proceedings which reflected that payment for payment was made before agreement to sale by one of the co-owner and held that when one of the joint holder of the property had made the payment to other holder is also eligible for the benefit of first and second proviso of Section 56(2)(x)(b). The Ld. AR for the assessee submits that present case is squarely covered by the said decision of Mumbai Tribunal. The Ld. AR for the assessee submits that impugned order passed by Ld. PCIT is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the interest of Revenue. We find that Co-ordinate Benches of Mumbai Tribunal in the case of Sulochana Saijan Modi (supra) while considering almost similar set of facts, wherein part payment of transaction was made by son of the assessee, who was joint holder of the property, the Tribunal accepted the submission for granting benefit of first and second proviso to Section 56(2)(x)(b) of the Act. We further find that in the present case, the part sale consideration was paid by Shri Umeshbhai P Patel, Sanjaybhai Tulshibhai Mangukiya and Karamshibhai Khimjibhai Mangukiya. We find that one of the assessee in these appeal that is Rajesh Bhai is the son of Parshottambhai C Patel. And Nayan Bhai is the cousin of Rajesh Bhai. Admittedly part consideration of the transaction was either paid by family members or by close relatives. Therefore, respectfully following the decision of Co-ordinate Benches of Mumbai Tribunal in the case Sulochana Saijan Modi (supra), we are also of the considered view that while accepting returned income considered by Assessing Officer has not committed any error. Therefore, the assessment order cannot be branded as erroneous. Thus, twine condition, for invok ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
