HIMMATBHAI MADHABHAI PATEL,AHMEDABAD vs. THE ITO, WARD-5(3)(1), AHMEDABAD

“7.3 During the course of appellate proceedings, the assessee has filed the written submission along with supporting documents and the same are perused and examined by the undersigned. The assessee has claimed that the original agreement was entered on 28.06.2007 and Rs.1,00,000/- was paid through banking channel, therefore, the market value as on the date of registration on 05.03.2014 is not applicable and the market value as on 28.06.2007 is to be adopted. The assessee argument is perused and the same is not acceptable for the reason that though the assessee has entered initial agreement entered on 28.06.2007, the substantial purchase consideration was not paid as on 28.06.2007 and possession of the property was not handed over to the assessee. In the normal business parlance, the transfer of the property to take place only after paying the entire consideration and possession should be handed over. In the assessee's case, the substantial purchase consideration was not paid and the possession was not handed over, therefore, the market value as on 28.06.2007 could not be adopted. In view Himmatbhai Madhabhai Patel Vs. ITO Asst. Year : 2015-16 - 3– of the above mentioned facts and discussions, the property was transferred only on 05.03.2014, therefore, the addition made by the AO u/s 56(vii)b(ii) of the Act is confirmed. The assessee has raised the objection on the addition of Rs.41,40,000/- through ground nos. 1 to 4, therefore, ground Nos. 1 to 4 are decided against the assessee. “

(x) where any person receives, in any previous year, from any person or persons on or after the 1st day of April, 2017,— (a) any sum of money, without consideration, the aggregate value of which exceeds fifty thousand rupees, the whole of the aggregate value of such sum; (b) any immovable property,— (A) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (B) for a consideration, the stamp duty value of such property as exceeds such consideration, if the amount of such excess is more than the higher of the following amounts, namely:— (i) the amount of fifty thousand rupees; and (ii) the amount equal to [ten] per cent of the consideration: Provided that where the date of 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 agreement may be taken for the purposes of this sub-clause : Provided further that the provisions of the first proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by way of an account payee cheque or an account payee bank draft or by use of electronic clearing system through a bank account [or through such other electronic mode as may be prescribed], 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 Himmatbhai Madhabhai Patel Vs. ITO Asst. Year : 2015-16 - 4– value of such property for the purpose of this sub-clause as they apply for valuation of capital asset under those sections: [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;] (c) any property, other than immovable property,— (A) without consideration, the aggregate fair market value of which exceeds fifty thousand rupees, the whole of the aggregate fair market value of such property; (B) for a consideration which is less than the aggregate fair market value of the property by an amount exceeding fifty thousand rupees, the aggregate fair market value of such property as exceeds such consideration… …… Section 50C reads as under:- Special provision for full value of consideration in certain cases. 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer : Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer: Provided further that the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed, on or before the date of the agreement for transfer: Himmatbhai Madhabhai Patel Vs. ITO Asst. Year : 2015-16 - 5– 5 Thus, on going through the provisions of the Act, since the assessee has entered into an agreement fixing the amount of consideration for the immovable property on 28.06.2007 and an amount of Rs.1,00,000/- has already been paid in the year 2007, i.e. a part has been paid by way of account payee cheques through a bank account, we have no hesitation to hold that the provisions of Section 50C or 56(vii)(b)(ii) of the Act are not attracted in the case of the assessee. The reasoning given by the Ld. CIT(A) that “the assessee argument is perused and the same is not acceptable for the reason that though the assessee has entered initial agreement entered on 28.06.2007, the substantial purchase consideration was not paid as on 28.06.2007 and possession of the property was not handed over to the assessee” cannot be upheld as the reasoning given against the provisions of the Act. Therefore, the addition made by the Assessing Officer is hereby deleted.