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Income Tax Appellate Tribunal, “RANCHI BENCH, RANCHI
Before: Shri Sanjay Garg & Dr. Manish Borad
order : July 06, 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 19.07.2022 of the National Faceless Appeal Centre (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The assessee in this appeal has taken the following grounds of appeal:
1. Under the facts and circumstances of the case the Ld. CIT(A) erred in confirming the addition of Rs. 8,95,000/- made by the Ld Assessing Officer taking the Stamp Duty Value when the transactions were made on the basis of an Agreement done on 19.01.2011, the payment was made to the builder by cheque on 14.02.2011.
Assessment year: 2014-15 Kavita Chaurasia When the agreement was prior to the date, then in lines to the already decided principles of law, the Ld CIT(A) should not have confirmed the addition made by the Ld Assessing Officer, considering the Stamp Duty value to be the purchase consideration. The other grounds shall be urged at the time of hearing.” 2.
The assessee in this appeal has disputed the addition made/confirmed by the lower authorities of Rs.8,95,000/- u/s 56(2)(vii)(b) of the Act on account of difference between the purchase consideration paid and the value adopted by the stamp duty authority on the purchase of flat.
The plea of the assessee has been that the flat was purchased in execution of an agreement between the seller and the assessee dated 19.01.2011. Though, the registration of the sale deed was done on 26.07.2013 when the circle rate of the flat was increased to Rs.23,70,000/-. However, the assessee had purchased the flat at a consideration Rs.14,75,000/- as settled vide agreement of sale dated 19.01.2011.
The ld. CIT(A) did not accept the above contention of the assessee observing that the advance payment of Rs.1,00,000/- as mentioned in the said agreement was paid in cash and therefore, as required u/s 56(2)(vii)(b) of the Act, since the payment was not made through cheque, therefore, the aforesaid plea of the assessee was not acceptable. However, the ld. counsel for the assessee has brought our attention to the copy of the sale deed, wherein, the payment schedule has been mentioned. The vendors have confirmed the payment of Rs.14,75,000/- received from assessee vide the following schedule:
S. Date Cash/Cheque Cheque No. Amount No. 1 12.11.10 Cash 101000/- Assessment year: 2014-15 Kavita Chaurasia 2 14.02.11 Cheque 573992 48000/- 3 14.02.11 Cheque 575994 66000/- 4 26.03.11 Cheque 575995 125000/- 5 30.03.11 Cheque 575996 75000/- 6 12.12.11 Cash 60000/- 7 12.12.11 Cheque 754357 200000/- 8 16.12.11 Cheque 977989 150000/- 9 03.12.12 Cheque 183009 650000/- Total Amount 14,75,000/- 6. A perusal of the above schedule of payment would reveal that though the assessee had paid the initial amount of Rs.101000/- in cash on 12.11.10 however, on 14.02.11, the payment of Rs.48000/- and Rs.66000/- were paid through two separate cheques. Even, thereafter every payment was also made through cheque as noted above. The agreement to sale as mentioned in the sale deed, itself, is dated 05.01.2011. The sale deed was executed on 26.07.2013. As per provisions of section 56(2)(vii)(b) of the Act, if an individual or HUF receives any immovable property without consideration, the stamp duty of which exceeds 50,000/- rupees, or for a consideration which is less than the stamp duty value of the property by an amount exceeding 50,000/- rupees, the stamp duty value of such property or the difference between the actual consideration received and the stamp duty value, as the case may be, is to be treated as deemed income of the assessee. However, as per the 1st Proviso to the said section, where, an agreement to sale has been entered before the transfer of the property and the amount has been fixed in the said agreement to sale, the stamp duty value on the date of agreement may be taken for the purpose of aforesaid clause. However, as per the 2nd Proviso, the 1st Proviso shall apply only in case where the amount of consideration referred to the agreement of sale or of part, thereof, has been paid by any mode other than cash on or before the date of such agreement to sale. In this case, the agreement for