9911796707
TMI Blog2024 (2) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... lat no. 1504 at Parel, Mumbai for a consideration of Rs. 2,47,66,875/- on 23.06.2017 along with the other co-owner Shri Prakash Keshrimal Shah. The AO further noticed that the stamp duty valued on the date of sale was Rs. 2,81,92,800/- and accordingly the AO invoked the provisions of section 56(2)(x) of the Act. The assessee submitted before the AO that the advance amount of Rs. 11,00,000/- towards purchase of flat was given to the builder M/s Matoshree Properties on 18.02.2015 by Account Payee cheque and that the letter of allotment was issued by the builder on 02.03.2015. The assessee further submitted that the letter of allotment issued by the builder should be considered as agreement between the builder and the assessee and therefore as per the proviso to section 56(2)(x) of the Act no addition can be made towards the difference between the market value on the date of sale and the date on which the agreement was entered into. The AO however did not agree with the submissions of the assessee and proceeded to make the addition of Rs. 17,12,962/- (1/2 share of the assessee on Rs. 34,25,925/- (i.e. Rs. 2,81,92,800/- less Rs. 2,47,66,875/-)) the relevant observations of the AO in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessee. Moreover, the allotment and claim of the assessee also lacks credibility for the following reasons 1. Allotment letter claimed to be issued by the Seller i.e. Matoshree properties on 02.03.2015 in its letter head and it was not registered or notarized. 2. The allotment letter does not bear the signature of the buyers i. e. the assessee or her father in law, Shri Prakash Shah. 3. No person has witnessed to this agreement. 1. As per the terms and conditions of this agreement, the assessee has to make a payment of Rs 49,53,375/- on or before 28/02/2015 which itself is contrary to the date of agreement i.e. 02.03.2015. Therefore, the credibility of this allotment itself is not fully verifiable. Further, the assessee has finally executed the Sale Deed on 23.06.2017 wherein the schedule of payments made were given. On perusal of the same, it is seen that a payment of Rs. 11,00,000/- has been made on 06.02.2015 vide Cheuge No. 000013 of HDFC Bank. However, on perusal of the details of this transactions, it is seen that this cheque was issued from the account of one Chetan Shah in the name of one Smt Prabhadev M. Both the parties are no longer either a party in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter of allotment as an agreement. The ld. AR also submitted that the other reason as quoted by the Revenue is that the letter of allotment is not signed by the buyer i.e. the assessee which is not correct since the copy submitted by the assessee is assessee's own copy and that the copy submitted to the builder is signed by the assessee. The ld. AR also drew our attention to the details of payments made by the assessee as listed in the agreement of sale (page 78 of the PB) which goes to substantiate that the assessee has made the advance payment on 06.02.2015 and therefore the proviso to section 56(2)(x)(b) is clearly applicable in assessee's case. Accordingly, the ld. AR prayed that the addition made considering the date of sale deed as the date of transfer be deleted. 6. The ld. DR on the other hand submitted that the letter of allotment given by the builder to the assessee cannot be treated as agreement since the same is having discrepancies as has been stated by the AO. Therefore, the ld. DR argued that the AO has correctly made the addition invoking provisions of section 56(2)(x) of the Act. 7. We have heard the parties and perused the material on record. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough such other electronic mode as may be prescribed 28, on or before the date of agreement for transfer of such immovable property: Provided also that where the stamp duty value of immovable property is disputed by the assessee on grounds mentioned in sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property for the purpose of this sub-clause as they apply for valuation of capital asset under those sections: 29[Provided also that in case of property being referred to in the second proviso to sub-section (1) of section 43CA, the provisions of sub-item (ii) of item (B) shall have effect as if for the words "ten per cent", the words "twenty per cent" had been substituted;] 8. From the plain reading of the above section it is clear that when a person receives an immovable property where the stamp duty value of such property as exceeds consideration received, then the amount in excess is to be taxed under section 56(2)(x)(b). However the proviso to the above section co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of agreement of sale for the purposes of sec. 56(2)(x) of the Act. On the contrary, the Ld D.R placed his reliance on the decision rendered by another co-ordinate bench, which was relied upon by AO & CIT(A), viz., Sujauddian Kasimsab (supra). 8. With regard to the decision rendered in the case of Sujauddian Kasimsab (supra), the Ld A.R submitted that the said decision has been rendered on the basis of facts prevailing in that case. The assessee, in the above said case, had paid Rs. 3.00 lakhs before the date of agreement, but the same was described as "earnest money deposit" in the Agreement, meaning thereby, the assessee did not fulfill the condition prescribed in sec. 56(2)(x) of the Act. The Ld A.R further submitted that the Tribunal did not consider the effect of second proviso to sec. 56(2)(x) of the Act in the above said case. We agree with the submissions of Ld A.R with regard to the distinguishing features pointed out in the decision rendered by the co-ordinate bench in the case of Sujauddian Kasimsab (supra). Hence, we are of the view that the above said decision could not lend support to the case of the revenue. 9. On the contrary, we are of the view that the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 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 Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Assessing officer for cosharer of property is arbitrary and unjustified in law" 15. Keeping in view the facts of the case, chronology of events and respectfully following the pronouncements of the co-ordinated benches of ITAT, we delete the addition made by A.O and confirms that assessee is entitled to the benefits of proviso to Section 56(2)(vii)(b)." 10. Accordingly, following the above said decision, we hold that the respective allotment letters issued to the assessee should be considered as "Agreement to sell" for the purposes of sec. 56(2)(x) of the Act. Since the assessee has paid the parts of consideration as per the terms and conditions of allotment through banking channels prior to the execution of Sale agreement, we are of the view that the provisos to sec. 56(2)(x) shall apply to the facts of the present case. Accordingly, the stamp duty valuation as on the date of respective Allotment letters should be considered for the purposes of sec. 56(2)(x) of the Act. Hence the AO was not justified in considering the stamp duty valuation as on the date of execution of agreement to sell. 11. On a perusal of record, we notice that the details of stamp duty val ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
