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Before: SHRI RAHUL CHAUDHARY & SMT. RENU JAUHRI
स िवाई की िारीख / Date of Hearing 11.06.2025 घोर्णा की िारीख/Date of Pronouncement 27.06.2025 आदेश / O R D E R PER RENU JAUHRI [A.M.] :- This appeal is filed by the assessee against the order of the Learned Income Tax Officer, International Tax Ward 4(2)(1), Mumbai [hereinafter referred to as “AO”] dated 17.12.2024 passed u/s. 250 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] for Assessment Year [A.Y.] 2016-17.
The assessee has raised the following grounds of appeal:
A.Y. 2016-17 Danish Sheikh GROUND NO. 1: REOPENING AND REASSESSMENT BAD IN LAW The notices u/s 148A were served much later than the date of issue and later than the time provided for filing the response and the last notice was served only on 31.03.2024, that is the date on which order u/s 148A was passed. The reply dt. 27.03.2023 filed in response to the notice was not considered on the ground that no reply was furnished. Details furnished were not considered in passing the said order u/s 148A. Importantly the order was passed by holding that the appellant had not filed any details nor explanation to any of the notices u/s 148A and had filed no reply at all. The order u/s 148A and the consequent notice u/s 148 were bad in law and were passed and issued in gross violation of the provisions of the natural justice and the Income tax Act. Importantly No income had escaped assessment as the investment that was alleged to be unexplained leading to the claim that income had escaped assessment was duly explained and was explained. Very importantly the scope of reopening was entirely changed from the alleged unexplained income to the deemed income u/s 56(2)(vil)(b). Provisions of S. 149 were ignored when an assessment beyond three/four years was opened without establishing that the income escaped was Rs. 50 Lakh or more and such income was on account of holding of an asset of such value exceeding Rs. 50 lakhs. Copies of the sanction of the PCCIT for proceeding under s. 148A and for issue of notice u/s 148 were not provided and it remained to be proved that the sanction if any was obtained as per law after due application of mind by the PCCIT and was issued in time. The appellant had a total income of Rs. 003, Nil and was not required to file the return of income. No obligation to file the ROI. (Pg 45 of paper book) Objections to the order u/s 148A (d) and notice u/s 148 were totally ignored (Pg 29 of paper book). GROUND NO. 2 & 5: INAPPLICABILITY OF SECTION 56(2)(vii)(b) LAND AND/OR BUILDING NOT ACQUIRED-PREMISES UNDER CONSTRUCTION A.Y. 2016-17 Danish Sheikh Deeming fiction of the provision of s.56(2)(vii)(b) had a limited application to the purchase only of Land and/or Building or both. The appellant had not purchased any land or building. The appellant had acquired the right to purchase the building under construction and the said rights cannot be construed or equated with the purchase of land or building. (Pg 96 & 98 of paper book) Kindly refer to the decisions in the cases of Yasin Moosa Godil 147 TTJ 94 (Ahd) which held that the deeming fiction u/s 50C, 43CA and 56(2) did not apply to the acquisition of the rights in the building under construction. GROUND NO. 3: FAILURE TO REFER TO VLUATION OFFICER In case of the difference between the Agreement value and the stamp duty value, the AO and the DRP were required to refer the matter to the DVO for valuation as was required u/s 43CA, 50C and 56(2)(vii)(b) of the Act. This was the statutory requirement to be adhered to by the assessing authorities before making any addition on account of the deeming fiction. GROUND NO 4: FAILURE BY AO TO ESTABLISH/IGNORE FACTS FOR PAYMENTS MADE BY THE APPELLANT No Payment whatsoever was made by the appellant in excess of the agreement value. No such allegation has been levelled by the assessing authorities neither any proof of such payment was brought on record by any of them. The deeming fiction was introduced as an anti-avoidance measure to restrict the practice of the use of the unaccounted funds in acquisition of the immovable property. It is a settled position in law that such provisions for deeming fiction have a limited application and should not be applied and invoked in cases where there was no proof of the unaccounted funds employed. GROUND NO 6: BENEFIT OF PROVISO TO S.56(2) (VII)(B) DENIED WRONGFULLY The Provisos 1st and 2nd of Section 56(2)(vii)(b) provides that no addition should be made on account of the differencing Agreement Value and the Stamp Duty Value in cases where there is a time difference between the date of agreement and the date of registration provided the payment in full or in part has been made by any account payee cheque or draft or use of ECS or any digital mode.
A.Y. 2016-17 Danish Sheikh While the AO and the DRP agreed that the two events were distinguished and different. they denied the benefit of the 1ª and 2nd Provisos simply on the ground that no agreement was executed in the year 2013. They held that the Letter of Allotment could not construed as an Agreement and therefore the benefit of the Provisos was not made available to the appellant Kind Attention is invited to the following direct decisions on the subject wherein it has been held that the Letter of Allotment should be considered as the Agreement in applying the Provisions and conferring the benefit of the 1 and 2nd Provisos Sajjanraj Mehta, ITA 56/Mum/2021 dt. 05.09.2022 Sulochana Saijan Modi, 225 TTJ (Mumbai) 861 Tamojit Das, ITA 1200/ Kol/2024 dt. 03.10.2024 Pinky Chetan Shah, ITA. 3629/Mum/2023 dt. 27.02.2024 Siraj Ahmed Jamalbhai, ITA 1886/Mum/2019 dt. 20.10.2020 Radha Kishan Kungwani, ITA 1106/JP/2018 dt. 19.08.2020, 185 ITD 433. Sanjay Dattatraya Dapodikar, ITA 1747/PN/2018 dt. 30.04.2019 Ashutosh Jhavs, 190 ITA 450 (Kol.) Deepak Shashi Bhushan Roy, ITA 3206 and 3316/Mum/2016 dt. 30.07.2018 Mohd Ilyas Hansari, 186 ITD 407 (Mum) The provisions of the first and second Provisos are held to be retrospective in nature and applicable from the year of inception of the main section. Vunndi Amarendran, 429 ITR 97 (Madras) Shrimati Rekha Agarwal, 38 NYPTTJ 895 (Raipur) Rahul G Patel, 195 TTJ (Ahd) 1027 Dharamshibhai Sonani, 181 TTJ (Ahd) 721 GROUND NO 7: POINT OF TAXATION The rights in premises under construction were acquired in the year 2013 on application, payment and allotment and therefore the income if any shall be A.Y. 2016-17 Danish Sheikh taxed in the A.Y. 2014-15 alone and not in A.Y. 2016-17. No income or deemed income could be said to have accrued, received or arisen on execution of the agreement. There is no presumption in law that permits the taxation of the deemed income in the year of agreement. GROUND NO 8: QUANTUM OF INCOME OF CO-OWNER The appellant is one of the Co-owners of the premises. The other two co-owners have contributed about Rs. 39 lakh which forms about 20% of the agreement value. S. 45 of the Transfer of Property Act lays down that in the absence of anything to the contrary it should be resumed that the co-owners hold equal shares in the property governed by the Act. The AO has in spite of the knowledge of the fact, Pg 62 of the Paper Book, of the co-ownership had made the addition of the entire difference Rs. 34,43,564 in values in the hands of the appellant only. GROUND NO. 9: ASSESSMENT OF TOTAL INCOME The total income assessed is assessed in violation of the provisions of the Income tax Act. The AO passing the order has assumed the jurisdiction is violation of the provisions of S.120 to S. 129 of the Act in ass much as no notice was issued nor any opportunity was afforded before the transfer of the jurisdiction. GROUND NO 10 REJECTION OF ADDITIONAL EVIDENCE This ground is not pressed as the evidences furnished to the DRP were partially considered by DRP and importantly the evidences furnished before the DRP are not the Additional evidence within the meaning of the term under Rule 46A of the Income tax Rules which have limited application to the evidences being furnished before the JCIT(Appeals) or the CIT(Appeals) in the appeals filed u/s 246A of the Income tax Act. GROUND NO. 11: SERIOUS VIOLATION OF NATURAL JUSTICE Natural Justice was seriously violated when the notices u/s 148A were not served in time, when they were served on the date of the passing of order leaving not ime for compliance. Natural Justice was seriously violated when the reply Replies ignored (Pg 64 of Paper Book) to notices u/s 148A were not considered at all.
A.Y. 2016-17 Danish Sheikh Natural Justice was seriously violated when the order u/s 148A was passed alleging that no replies and explanation or the details called for were furnished GROUND NO. 12: MISTAKE BY AO IN COMPUTATION SHEET Mistakes were committed by the AO in issuing and computing the total income wherein the same income has been taxed twice and further a part of such income so taxed sis taxed at the maximum marginal ratees u/s 115 BBE of the Income tax Act. The application for rectification filed in time has not been entertained till date. treated as a special income liable GROUND NO. 13: LEVY OF INTEREST U/S 234A/234B OF THE ACT Interest was levied without affording any opportunity of hearing in the course of reassessment and without passing a speaking order.”
Brief facts of the case are that the assessee had not filed its return of income for AY 2016-17. However, from the departmental database, it was noticed by the Ld. AO that the assessee acquired an immovable property for a consideration of Rs. 1,55,67,185/- during FY 2015-16. Thereafter, a notice u/s 148 was issued, in response to which the assessee filed its return on 12.04.2023 declaring nil income. During the course of assessment proceedings, Ld. AO observed that the assessee had purchased the immovable property at a consideration less than the fair market value of the property, and therefore, sought to add the difference in the fair market value (Rs. 2,24,75,500/-) and the agreement value (Rs. 1,91,75,157/-) as income from other sources u/s 56(2)(vii)(b) of the Act. Since no reply was received to the show cause notices issued, the AO proposed an addition of Rs. 32,96,343/- u/s 56(2)(vii)(b) vide a draft assessment order, against which the assessee filed objections before the A.Y. 2016-17 Danish Sheikh Dispute Resolution Panel (DRP). After considering the response of the assessee, Ld. DRP issued directions to the Ld. AO, in accordance to which the assessment was completed u/s 147 r.w.s 144C (13) of the Act at an income of Rs. 32,96,343/- .
Aggrieved with the order of Ld. AO, the assessee preferred an appeal before the Tribunal. The assessee has raised as many as 13 grounds of appeal
. However, the sole substantive issue involved in this appeal relates to the applicability of Section 56(2)(vii)(b) to the transaction relating to immovable property.
5. Before us, Ld. AR has explained that the assessee is a non-resident for the year under consideration. He, along with his parents, had applied for the purchase of a residential property vide application dated 07.10.2013 in a project, which was under construction by the Lodha Supremus. They were allotted Flat No. 1105 vide allotment letter dated 07.10.2013 for an agreed consideration of Rs. 1,91,75,157/-. Subsequently, the agreement for sale was entered into on 29.09.2015 for the same consideration of Rs. 1,91,75,157/- and registered on full payment of consideration. The possession of the premises was handed over subsequently. At the time of execution of the agreement, the residential premises were valued at Rs. 2,24,75,500/- by the Stamp Duty Authorities as against the agreement value of Rs. 1,91,75,157/-, which was the actual consideration agreed under the letter of allotment dated 10.10.2013. Ld.
A.Y. 2016-17 Danish Sheikh AR has submitted that despite the assessee’s objections filed before the Ld. DRP, the assessment was completed after making the addition of Rs. 32,96,343/- on account of the difference between the stamp duty value and the actual sale value after invoking provisions of Section 56(2)(vii)(b) of the Act. Ld. AR has argued that the 1st and 2nd proviso of Section 56(2)(vii)(b) provide that no addition can be made on account of difference between the agreement value and the stamp duty value, in case there is a time difference between the date of agreement and the date of registration, provided payment either in part or full has been made at the time of agreement. However, Ld. AO denied the benefit of these provisos simply on the ground that no agreement was executed in the year 2013, and that the letter of allotment could not be considered as an agreement for giving the benefit of the provisos to the assessee. In this regard, Ld. AR has placed reliance on several decisions of the coordinate benches, wherein it has been held that the allotment letter has to be considered as an agreement for the purposes of section 56(2) of the Act. Some of the cases relied upon by the Ld. AR are as under: i. “Sajjanraj Mehta, ITA 56/Mum/2021 dt. 05.09.2022 ii. Sulochana Saijan Modi, 225 TTJ (Mumbai) 861 iii. Pinky Chetan Shah, ITA. 3629/Mum/2023 dt. 27.02.2024”
Further, Ld. AR has argued that the above provisos are held to be retrospective nature and applicability from the year of the inception of the main A.Y. 2016-17 Danish Sheikh section, and for this proposition, reliance has been placed on the following decisions of the coordinate benches: i. CIT v. Vummudi Amarendran (2020) 429 ITR 97 ii. Shrimati Rekha Agarwal, 38 NYPTTJ 895 (Raipur) iii. Rahul G. Patel. v. DCIT (2018) 173 ITD 1 iv. Dharamshibhai Sonani v/s ACIT 181 TTJ (Ahd) 721 7. On the other hand, Ld. DR has strongly relied on the orders of the lower authorities and has submitted that since there was no agreement to sell, mere issuance of allotment letter cannot be considered as the agreement envisaged in the first and second proviso to Section 56(2)(vii)(b) of the Act.
We have considered the rival submissions and perused the material placed before us. Although several issues have been raised by the assessee, the sole substantive issue of the consideration is the applicability of Section 56(2)(vii)(b) of the Act to the impugned transactions. Admittedly, the assessee has placed on record all the relevant documents, including a copy of the application/allotment letter from which it is clear that the price was agreed vide this document dated 07.10.2013 and part payment was also made in pursuance of the allotment letter as per the copy of bank account and receipts issued by the builder. We find that this issue has repeatedly been allowed in favour of the assessee in various decisions of the coordinate bench. Specifically, in the case of Mr. Sajjanraj Mehta, Mumbai v/s ITO Ward 21(3)(2), Mumbai in it has been held as under:
A.Y. 2016-17 Danish Sheikh “10. We have gone through the order of the A.O, Ld. CIT(A) and various submissions of assessee dated 06-10-2021. Vide pg no-23 to 27 of paper-book we have observed the payment made by the assessee to the developer on 17-10-2011 amounting to Rs 14 lacs vide cheque no 906740, Bank of Maharashtra to enter into an agreement cum acknowledgement of payment made and other terms and conditions about the property. This agreement between assessee and developer clearly confirms the amount of consideration along with other terms and conditions relating to levy of stamp duty, service tax and other charges to be paid by the assessee.
The finding of the A.O vide pg no-4, para-2.6 wherein he observed that assessee has deposited Rs 14 lacs with the developer to year mark the said premises for Rs 70 lacs. Even if for the time being it is assumed that this agreement is merely a letter of intent, still amount mentioned in this so called letter of intent can't be changed by either of the party .At the max the parties involved may opt for exit from the transaction but amount of consideration can't be changed. This transaction of the assessee has to be analysed in commercial parlance, without finalisation of consideration nobody will deposit 20% of the final consideration. The vitality of the agreement further found force from the behaviour of the assessee as confirmed by the A.O also that assessee paid further Rs 34.5 lacs till financial year 2012-13. Assessee also paid Rs 1,00,285/-as VAT, Rs 1.35,187/- as service tax, Rs 5,02,000/- as stamp duty and Rs 30,000/- as registration charges.
The chronology of the events confirms that the finding of the A.O treating the agreement of the assessee as letter of intent is not correct. In this matter treating the said agreement as letter of intent shows an over thinking and hyper technical interpretation at the end of the A.O. assessees case clearly falls in the proviso to Section 56(2)(vii)(b). For sake of clarity we are reproducing herein below the relevant portion of proviso "Provided that where the date of the 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 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".
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) 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 A.Y. 2016-17 Danish Sheikh 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 e) Sanjay Dattatraya Dapodikar v/s ITO Ward 6(2), Pune ITA No. 1747/PN/2018 dtd. 30/04/2019(Pune) (Trib) Where date of agreement for fixing amount of consideration for purchase of a plot of land and date of registration of sale deed were different but assessee, prior to date of agreement, had paid a part of consideration by cheque, provisos to section 56(2)(vii)(b) being fulfilled, stamp value as on date of agreement should be applied for purpose of said section d) Ashutosh Jhavs. ITO Ward-2(5), Ranchi ITA No. 188/Ranchi/2019 dtd. 30/04/2021, [190 ITD 450 (Kolkata - Trib.).] Where assessee purchased a property and made part payment of sale consideration by cheque on very next day of execution of purchase agreement and registry was done after a year, since such part payment made by cheque on very next day of execution of agreement was towards fulfilment of terms of purchase contract itself and there was no mala fide or false claim on part of assessee, no addition could be made on account of difference between amount of sale consideration for property shown in purchase agreement and stamp duty value of said property on date of registry by invoking section 56(2)(vii)(b) e) Dy. CIT-5(3)(1) vs. Deepak Shashi Bhusan Roy ITA No. 3204 & 3316/M/2016 dtd. 30/07/2018(Mum.) (Trib.) In order to determine taxability of capital gain arising from sale of property, it is date of allotment of property which is relevant for purpose of computing holding period and not date of registration of conveyance deed f) Mohd. Ilyas Ansari v. ITO-23(2)(3), Mumbai [ITA No. 6174/M/2017dtd. 06/11/2020, 186 ITD 407 (Mumbai - Trib.)] Where Assessing Officer mechanically applied provisions of section 56(2) to difference between stamp duty value and actual sale consideration paid by assessee and made additions, without making any efforts to find out actual cost of property, additions made by Assessing Officer were to be set aside."
Similar property in the case of assessee's wife with similar transactions has been accepted by the same A.O without any addition for the same A.Y. Here we would like to rely on the decision of Hon'ble Gauhati HC. "Gulabrai Hanumanbox, vs. Commissioner of Wealth-tax [198 ITR 131 (Gauhati) (HC).] Two different Assessees having similar/ identical facts w.r.t valuation of property cannot be assessed with different rates for the same property. Thereby, the order passed by the Assessing officer for co-sharer of property is arbitrary and unjustified in law"
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 A.Y. 2016-17 Danish Sheikh addition made by A.O and confirms that assessee is entitled to the benefits of proviso to Section 56(2)(vii)(b).”
In light of the above facts and circumstances and the judicial pronouncements, we are of the view that the stamp duty value on the date of allotment (07.10.2013) has to be considered and not on the date of subsequent registration on 29.09.2015 allowing the assessee the benefit of two provisos of Section 56(2)(vii)(b) of the Act. Accordingly, the addition made by the Ld. AO is set aside, and ground No. 6 of the assessee’s appeal is allowed. As the sole substantive issue is allowed in favour of the assessee, the remaining grounds have been rendered academic and infructuous, and no further adjudication is required on these issues.
In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 27.06 .2025.