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Income Tax Appellate Tribunal, DEHRADUN BENCH, DEHRADUN
Before: SHRI SATBEER SINGH GODARA & SHRI NAVEEN CHANDRA
This assessee’s appeal for assessment year 2017-18, arises against the Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre [in short, the “CIT(A)/NFAC”], Delhi’s DIN and order no. ITBA/NFAC/S/250/2023-24/1053298602(1), dated 30.05.2023 involving proceedings under section 147 r.w.s.144 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’).
Heard both the parties at length. Case file perused.
It emerges during the course of hearing that the assessee’s first substantive ground is that both the learned lower authorities have erred in law and on facts in making the section 56(2)(vii)(b) addition of Rs.19,46,500/- which represents difference between the actual purchase price of Rs.21 lakhs and the circle rate of the relevant capital asset, amounting to Rs.59,93,000/-; respectively to the extent of half share therein. There is no dispute between the parties that the assessee had indeed purchased the land in question on 21.06.2016 admeasuring 0.7050 hectares metre in the revenue estate of Mauza Dhakrani, Pargana Pachuwa Doon, Tehsil, Vikasnagar, Distt. Dehradun.
The Revenue vehemently supports the impugned addition that the same has been rightly invoked in the assessee’s hands going by the foregoing difference in the circle rate and the actual purchase price under section 56(2)(vii)(b) of the Act. We invited both the parties’ attention to section 56(2)(vii)(b) Explanation (d), defining the property as “means the following capital asset of the assessee” i.e. the immovable property being land or building or both, under sub-clause (i) thereof. We further wish to make it clear
2 | P a g e that there is admittedly no discussion against the assessee that his land purchased forming the subject matter of the impugned addition is in fact a capital asset under section 2(14) of the Act. 5. The Revenue at this stage relies on the assessment discussion in para 8 that the learned coordinate bench in in case of ITO, Alwar Vs. Sh. Trilok Chand Jain has already decided that the impugned addition, could indeed be made even if the asset concerned is not a capital asset.
We are of the considered view that once the legislature has already made it clear that such a property has to be a capital asset, stricter interpretation only would be applicable herein as per Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company, (2018) 9 SCC 1 (SC) (FB) which was never considered in the tribunal’s earlier decision. We further draw support from CIT Vs. B.R. Constructions (AP) (1992) 202 ITR 222 (AP) (FB) that such an order of a learned coordinate bench not considering the settled principles of law, does not form a binding precedent. We accordingly accept the assesee’s instant first and foremost substantive ground and delete the impugned section 56(2)(vii)(b) addition of Rs.19,46,500/- in very terms.
Learned counsel submits that the assessee’s second substantive issue canvassed in the instant appeal challenges both the lower authorities’ action making section 69 unexplained investment addition of Rs.12 lakhs which has been held liable to be assessed under section 115BBE of the Act. He seeks to buttress the point on the quantification aspect thereof that some of the corresponding cheques had bever been encashed during the land transaction in question.
The Revenue’s case, on the other hand, is that there is no discussion either in assessment or in the lower appellate findings on the instant clinching aspects. We thus deem it appropriate in the larger interest of justice to restore the assessee’s instant second substantive ground back to the learned Assessing Officer for his afresh appropriate adjudication and verification preferably within three effective opportunities in consequential proceedings. This second substantive ground is accepted for statistical purposes.
Lastly comes the third issue of assessee’s claim of having derived agricultural income of Rs.1,83,000/- and disallowed on the ground of failure to produce the supportive evidence. The same factual position continued herein as well, and therefore, we see no 4 | P a g e merit in the instant substantive ground in very terms. Rejected accordingly.
So far as assessee’s assessment under section 115BBE herein is concerned, case law S.M.I.L.E. Microfinance Ltd. Vs. ACIT, W.P. (MD) No.2078 of 2020 & 1742 of 2020, dated 19.11.2024 (Madras), has settled the issue that the impugned statutory provision section 115BBE would come into effect on the transactions done on or after 01.04.2017 only. We accordingly direct the learned Assessing Officer to assess the assessee under the normal provisions in very terms.