SHILPA GAUTAM,MUMBAI vs. ITO, (INT TX), WARD-2(3)(1), MUMBAI

Per contra, the Ld. Departmental Representative relied upon the 8. Draft Assessment Order and the Final Assessment Order passed by the Assessing Officer. He submitted that there was no agreement between the parties as on the date of booking of the immovable property since the Appellant had failed to pay the entire booking amount. Further, the actual payments by the Appellant were not as per the Schedule of Payments specified in the Agreement for Sale. Even the allotment letter was issued during the relevant previous year. Therefore, the Assessing Officer was justified in adopting the stamp value as on the date of agreement for sale (i.e. 09.03.2016) while invoking provisions of Section 56(2)(vii)(b) of the Act and making an addition of INR 55,87,200/- under the head ‘Income from Other Sources’.

We have considered the rival submissions and perused the material 9. on record. It is admitted position that the Appellant had applied for

ITA No.409/Mum/2023 (AY 2016-17) immovable property on 05.06.2012. The Appellant had placed a copy of Booking Form at Page 2 of the paper-book which specifies that payment of INR 40,40,406/- vide cheque, dated 01.06.2012, drawn on Bank of India, Branch Mumbai was made by the Appellant towards booking of the aforesaid immovable property. While the Revenue admits to the aforesaid payment having been made, it contends that since the entire booking amount was not paid there was no agreement fixing the consideration for transfer of immovable property. We are not inclined to accept the aforesaid contention. We note that the developer/seller has accepted the receipt of the following payments from the Appellant: Date Cheque No. Name of the Bank Amount (INR) 01.06.2012 000005 Bank of India 40,40,406/- 30.06.2012 000001 Bank of Baroda 20,00,000/- 30.06.2012 000004 Bank of India 6,18,000/- 30.06.2012 002436 Citi Bank 44,42,813/- 30.06.2012 662327 ICICI Bank 10,20,000/- 06.03.2013 002440 Citi Bank 9,48,544/- 27.03.2015 002444 Citi Bank 54,08,947/- 26.10.2015 27101132 RTGS 16,42,552/- 24.12.2015 281215545 RTGS 16,42,552/- xx.01.2016 270116055 RTGS 16,42,552/- 29.02.2016 0103161203 NEFT 16,42,552/- TOTAL 2,50,48,918/-

On perusal of above, we find that aggregate payment of 10. INR.1,21,12,219/- was made by the Appellant by way of cheque payments to the sellers/developer till 30.06.2012. Thus, leaving the only difference of INR 2,06,921/- in the booking amount of INR.1,23,19,140/- and the actual aggregate payments of INR.1,21,12,219/- made till 30.06.2012. Therefore, in our view, the Appellant had substantially complied with the terms of making the booking. Further, the developer/seller has not raised any objection in this regard. In paragraph 3 of the Allotment Letter, dated 08.03.2016, the developer/seller has acknowledged the fact that

ITA No.409/Mum/2023 (AY 2016-17) booking was made by the Appellant on 05.06.2012 and pursuant thereto an aggregate amount of INR 2,50,48,918/- was paid by the Appellant on various dates by cheque/RTGS which included payment of INR 40,40,406/- made by way of cheque dated 01.06.2012. The Agreement for Sale, dated 09.03.2016, contains an acknowledgement by way of Receipt issued by developer/seller for the aforesaid payments aggregating to INR 2,50,48,918/- made by the Appellant to the developer/seller towards consideration specified in ‘Seventh Schedule’ to the Agreement for Sale, dated 09.03.2016. On perusal of the Booking Form, dated 05.06.2012, the Allotment Letter, dated 08.03.2016, and the Agreement for Sale, dated 09.03.2016, we find that there is no change in the amount fixed for transfer of the immovable property which stood at INR 4,10,63,800/- in all the aforesaid documents. Thus, clearly there was agreement between the Appellant and the developer/seller fixing the consideration for transfer of immovable property. Further, it is admitted position that part-payment of INR 40,40,406/- was made by the Appellant by way of cheque, dated 01.06.2012. We have already noted that the Appellant had already made aggregate payment of INR.1,21,12,219/- made till 30.06.2012. Thus, the conditions specified in the second proviso to Section 56(2)(vii)(b) of the Act stand fulfilled and therefore, stamp duty as on the date of agreement would have to be compared with the agreement value as per First Proviso to Section 56(2)(vii)(b) of the Act. The Appellant has placed on record certificate showing stamp duty ready reckoner value as on the date of booking of flat (i.e. 05.05.2012) at INR 3,20,58,607/-. Since the stamp value as on 05.06.2012 was less than the agreement value of INR 4,10,63,800/-, addition made by the Assessing Officer invoking the provisions of Section 56(2)(vii)(b) of the Act cannot be sustained. Accordingly, the addition of INR

ITA No.409/Mum/2023 (AY 2016-17) 55,87,000/- made by the Assessing Officer vide Final Assessment Order, dated 24.01.2022, is deleted. Thus, Ground Nos. 1 to 3 raised by the Appellant are allowed while Ground Nos. 4 & 5 are disposed as being infructuous.

In result, the present appeal preferred by the Appellant is allowed. 11.

Order pronounced on 30.05.2023.

Sd/- Sd/- (Prashant Maharishi) (Rahul Chaudhary) Accountant Member Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 30.05.2023 Alindra, PS

ITA No.409/Mum/2023 (AY 2016-17) आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त/ The CIT प्रध न आयकर आय क्त / Pr.CIT 4. 5. दिभ गीय प्रदिदनदध, आयकर अपीलीय अदधकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file.

आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदधकरण, म ुंबई / ITAT, Mumbai