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Facts
The Assessing Officer made additions of Rs. 1,25,00,000/- for unexplained investment in property and Rs. 33,07,000/- as the difference between sale consideration and stamp duty valuation. The Assessee, a housewife with no independent income, claimed the property was purchased by her husband, and she was added for succession purposes. The appeal was initially dismissed by the CIT(A) due to a delay of 47 days.
Held
The Tribunal condoned the delay, holding that the Assessee's reasons for delay were genuine and unintentional. On merits, it was observed that the entire consideration for the property was found to be genuine in the husband's assessment, and the difference was also attributed to the husband's investment. Therefore, no addition could be made in the Assessee's hands.
Key Issues
Whether additions made to the Assessee's income for property investment and stamp duty difference are sustainable when the same were found to be genuine in the husband's assessment and the Assessee was not the primary investor.
Sections Cited
69, 250, 147, 144B, 56(2)(vii)(b), 56(2)(vii)
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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI OMKARESHWAR CHIDARA
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 04.02.2025, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2017-18.
Mrs. Sheetal Sameer Chaphekar 2. In this case, the Assessing Officer (AO) dated 25.05.2023 due to non-compliance by the Assessee, vide assessment order ultimately made the addition of Rs.1,25,00,000/- as unexplained investment u/s 69 of the Act mainly on the reason that the Assessee during the assessment year under consideration had purchased an immovable property of Rs.1,25,00,000/-, however, source of income of the Assessee and source of investment of Rs.1,25,00,000/- remains unexplained and undisclosed u/s 69 of the Act and therefore the same is added in the hands of the Assessee.
Further, the AO also made the addition of Rs.33,07,000/- on account of difference between the consideration as shown by the Assessee to the tune of Rs.1,25,00,000/- from Sai Siddhant Devhalapars Ache Bhagidar Jayesh Vhi Tanna, registered at the Sub Registrar, Andheri-6, Mumbai and the stamp duty valuation as determined by the Stamp Duty Authority, to the tune of Rs.1,58,07,000/-.
The Assessee, being aggrieved against the aforesaid additions, challenged the same by filing first appeal before the Ld. Commissioner, however, with a delay of nearly 47 days. With regard to the delay, though the Assessee has mentioned the reason for delay in column no.15 to the effect “I, taxpayer, request Hon’ble Authority to condone the delay of nearly 47 days in filing appeal to the Commissioner of Income Tax (Appeals) [CIT(A)] to avoid genuine hardship to me and situation was genuinely out of control of mine. So I pray to accept the appeal”, however the Assessee did not make any specific application. The Ld. Commissioner, though considered the reason for delay as mentioned in the form no.35, however, not being satisfied with the same, ultimately dismissed the appeal of
Having heard the parties and perusing the material available on record and giving thoughtful consideration to the rival claims of the parties, we observe from the impugned order that the Assessee before the Ld. Commissioner also claimed that the Assessee being a housewife aged about 40 years was not required to file income tax return for A.Y. 2017-18, as she was not earning any income and dependent on the spouse’s income. During the AY 2017-18 as well, the Assessee had also not earned any income but in fact the income generated in joint accounts, were being considered in the appellant/Assessee’s husband income tax return for A.Y. 2017-18.
The Assessee further claimed that according to the registered agreement dated 18.04.2016 with Sub Registrar, Andheri-6, Mumbai, the property was purchased in the name of husband of Assessee and the Assessee’s name was added just for the succession purpose only. The property was purchased by the husband from his own saving funds and borrowed loan from ICICI Bank Ltd. The AO of the Assessee’s husband had also issued the order dated 18.04.2023 us/ 147 r.w.s. 144B of the Act for the provision of section 56(2)(vii)(b) of the Act. The Assessee also claimed before the Ld. Commissioner that provisions of sections 56(2)(vii) and 69 of the Act are not applicable to the Assessee.
The Assessee with regard to the condonation of delay before the Ld. Commissioner has claimed that she was suffering mentally and physically and therefore the delay in filing the first appeal has been occurred and therefore lenient view may be taken and delay
“ Assessee and her husband had simultaneously received income tax notices for reopening of the assessment for the A.Y. 2017-18 and therefore the Assessee’s husband was forwarding all the notices received on his email to our Ld. Chartered Accountant, Mr. Mahadev Bhide who inadvertently omitted to make submissions in my case, which resulted into passing the assessment order as ex-parte. The Assessment order was forwarded to our Ld. CA by my husband vide email dated 26.05.2023 and the same is annexed herewith. Her husband was also following up with Mr. Mahadev Bhide, Ld. CA pertaining necessary action qua additions made by the AO, however, we did not get any feed back from Mr. Mahadev Bhide and therefore after consistent follow up for over two months and since there was no response from Mr. Mahadev Bhide Assessee’s husband decided to look for new CA and consequently approached the Ld. CA Mr. Suraj Naik in last week of July who somehow was busy in filing of returns. However, Mr. Suraj Naik, Ld. CA filed the appeal on dated 11.08.2023 which resulted into delay of 47 days in filing of the same. The delay was neither intentional nor malafide but because of the aforesaid reason. As the amounts involved in the additions made by the AO have also been considered in the Assessee’s husband case/assessment order dated 18.04.2023 u/s 147 r.w.s. 144B of the Act and therefore lenient view may be taken and delay may be condoned.”
On the contrary, the Ld. DR though refuted the claim of the Assessee but not the factual aspects as mentioned by the Assessee that amounts involved in the additions made by the AO and sustained by the Ld. Commissioner by dismissing the appeal of the Assessee in limine for want of limitation, were also considered in the Assessee’s husband case/assessment (supra).
Thus, considering the reasons stated by the Assessee for the condonation of delay as genuine, bonafide and unintentional and sufficient, we are inclined to condone the delay occurred in filling of appeal before the Ld. Commissioner. Hence, the delay of 47 days
Coming to the merits of the case, as observed above, admittedly, the Assessee is a housewife and had no income for the assessment year under consideration to show. Admittedly, the property under consideration vide agreement for sale dated 31.03.2016 is registered in the name of Mr. Sameer S. Chaphekar (Assessee’s husband) and Mrs. Sheetal Sameer Chaphekar {Assessee’s herein}. Admittedly, the Assessee in the assessment proceedings as well as before us, by producing the relevant documents, has been able to demonstrate that the Assessee’s husband had procured loan of Rs.70,75,000/- as housing loan. Further, the Assessee by producing the bank statements of her husband, also highlighted the payments made to the builder from her husband’s account maintained with Indus Indo Bank. Further, the Assessee has also demonstrated from the assessment order dated 18.04.2023 passed in the Assessee’s husband case, that the amount of consideration shown to the extent of Rs.1,25,00,000/- as consideration paid for purchase of the property, has been found as genuine and therefore no addition on such count has been made by the AO in the Assessee’s husband’s case.
Thus, considering the peculiar facts and circumstances, as the amount of Rs.1,25,00,000/- has also been considered and found genuine in the Assessee’s husband’s case, as no addition has been made on that count, and therefore the said amount cannot be added in the hands of the Assessee and therefore the addition of Rs.1,25,00,000/- is unsustainable and hence deleted.
Mrs. Sheetal Sameer Chaphekar 9. Coming to the differential amount of Rs.33,07,000/- between the consideration amount shown in the registered deed and the value determined by the Stamp Duty Valuation, we observe that the said amount has also been considered in the Assessee’s husband’s case and vide assessment order dated 18.04.2023 (supra), the similar addition has also been made in the hands of the Assessee’s husband’s case. As observed above that the property in fact, has been purchased by the Assessee’s husband by taking loan and making payment from his own account and the Assessee has only been inducted as a co-owner in registered deed just for the purpose of succession and/or for love and affection and thus the liability, if any, qua differential value between the consideration shown by the Assessee and the value determined by the stamp duty valuation, can be fastened in the Assessee’s husband case but not in the hands of the Assessee herein. Thus, we are inclined to delete such addition as well and hence, the same is also deleted.
In the result, the Assessee’s appeal is allowed.