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TMI Blog2024 (5) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... year mentioning that the income has escaped within the meaning of sec. 56(2)(vii)(b) of the Income Tax Act, 1961? 2. Whether on the facts and in the circumstances of the case, Id.CIT(A) was right in admitting the additional evidence in the form of acquisition of property by assessee's father as no copy of such additional evidence was provided to the AO during the assessment proceedings for invoking its power under Rule 46A(3) of Income Tax Rules, 1962? 3. Whether on the facts and in the circumstances of the case, Id.CIT(A) was right in admitting the additional evidence under Rule 46A(1) of the Income Tax Rules, 1962 without remanding back the matter to the AO for further verification of additional evidences produced as in the absence of such evidence and other material facts, the assessment order was passed ex-parte by the A.O? 4. Whether, it is not the fit case to set-aside the matter to the file of the CIT(A) in view of violation of Rule 46A(3) of the Income Tax Rules, 1962? 5. Any other ground which may be adduced at the time of hearing." 2. Succinctly stated, the assessee had filed his return of income for A.Y. 2017- 18 on 02.08.2017 declaring an income of Rs. 7,24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father for the relevant period which would have established his claim that the subject property was purchased by his father from Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal (MP) in the year 1993. 5. The A.O based on his aforesaid deliberations was of the view, viz. (i). that as the assessee had purchased the subject property of a value of Rs. 1,11,52,200/- for consideration of Rs. 1,05,332/- (as per purchase deed, dated 02.03.2017), the therefore, having purchased the property for a lesser value of Rs. 1,10,46,868/- [Rs. 1,11,52,200/- (-) Rs. 1,05,332/-] his income to the said extent had escaped assessment within the meaning of section 56(2)(vii)(b) of the Act; and (ii). that as the assessee had failed to prove the source of deficit investment of Rs. 1,10,46,866/- (supra), therefore, the same was to be held as his unexplained investment u/s 69 of the Act. Accordingly, the A.O. vide his order passed u/s. 147 r.w.s. 144 r.w.s. 144B of the Act, dated 24.03.2022 after making an addition Rs. 1,10,46,868/- u/ss. 56(2)(vi)(b))/69 of the Act determined the income of the assessee at Rs. 1,16,11,734/-. 6. Aggrieved the assessee carried the matter in appeal before the CIT(Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any previous year, from any person or persons on or after the 1st day of October, 2009 [but before the 1st day of April, 2017],- (a) .......... (b) any immovable property,- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: Provided that 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 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. 5.6. From the above provisions, it is clear that the Assessing Officer is empowered to charge the income under the head Income from Other Sources if an immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 69 can be made only where the undisclosed investment which are unrecorded in the books of accounts are out of source which are undisclosed. In the instant case, the Assessing Officer does not have any evidence to show that the undisclosed investment over and above the actual consideration has been actually made by the appellant. The difference between Stamp Value and the property and the actual consideration is only a deemed/notional income in terms of Section 56(2)(vii)(b) of the Act. I have already held that such addition u/s. 56(2)(vii)(b) could not be made in the facts and circumstances of the appellant's case. Such being the case, the addition made u/s 69 also fails. The grounds raised in 2,3 and 4 are allowed. 6. In the result the appeal is Allowed." 7. The revenue being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 8. Shri Satya Prakash Sharma, the Ld. Senior Departmental Representative (for short 'DR') relied on the order of the A.O. The Ld. D.R submitted that the CIT(Appeals) had grossly erred in law and facts of the case in deleting the addition of Rs. 1,10,46,868/- made by the A.O u/ss. 56(2)(vii)(b)/69 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,000/- (approx.), and the purchase consideration was paid through cheques, therefore, the stamp duty value as on the date of the aforesaid "agreement" was to be taken for Sec. 56(2)(vii)(b) of the Act. The Ld. AR in support of his aforesaid contention relied on the order of the ITAT, Mumbai in the case of Ms. Shilpa Gautam Vs. Income Tax Officer, ITA No.409/Mum/2023 dated 30.05.2023. 10. Also, the Ld. AR submitted that as there is no evidence of making payment over and above the purchase consideration that has changed hands as per the registered deed, Section 69 of the Act cannot be invoked. Further, it was stated by the Ld. AR that as the A.O. himself had stated that the addition had been made by invoking Section 56(2)(vii)(b) of the Act, therefore, the addition u/s. 69 of the Act on the said count itself was not sustainable. The Ld. AR in support of his aforesaid contention had relied on the order of the ITAT, Delhi in the case of DCIT Vs. Gagan Khosla (2015) 44 CCH 464 (Delhi). Also, it was submitted by the Ld. AR that the assessee along with his wife had in A.Y. 2022-23 jointly sold the subject property and had computed the capital gain by taking the amount of purchase consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: Provided that 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 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;" (emphasis supplied by us) We find on a perusal of the "1st proviso" to Section 56(2)(vii)(b) of the Act, that the same, therein, contemplates 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 purpose of the aforesaid statutory provision. At the same time, the applicability of the "1st proviso" is subject to the satisfaction of a pre-condition that can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, i.e. at a value that had accrued at the stage of executing the agreement, Page No.25-44 of APB. On a perusal of the purchase deed, it transpires that the same therein mentions that the subject plot No. DK-5/3 admeasuring 4000 sq. ft. (50 * 80) was allotted to a member having membership No.3128, which conforms with the details provided in the allotment certificate issued by the society to the assessee's father. Apart from that, the payment of the purchase consideration as stated in the aforesaid receipts dated 27.06.1991, 29.07.1992, and 12.09.1992 vide cheques/drafts are mentioned in the purchase deed. Also, payment of the balance development charges of Rs. 19,962/- that was paid by the assessee on 28.02.2017 is stated in the aforesaid purchase deed. Considering the aforesaid facts, we concur with the CIT(Appeals) that as the amount of purchase consideration for transferring the aforementioned immovable property, i.e. Plot No.DK-5/3 (admeasuring 4000 sq.ft) was fixed as per terms of the "agreement to purchase" executed between the assessee's father, viz. Late Shri Sundar Lal Gupta and Danish Grih Nirman Sanstha Maryadit, Bhopal in the year 1991 at Rs. 92,000/- (includin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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