TAMAL KUNDU,KOLKATA vs. A.C.I.T., CIRCLE - 37, , KOLKATA
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Income Tax Appellate Tribunal, “B” BENCH, KOLKATA
Before: SHRI SANJAY GARG & SHRI SANJAY AWASTHI
आदेश/O R D E R Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 2nd August, 2024 of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the ‘ld. CIT(A)’) passed u/s 250 of the Income Tax Act, 1961 (‘Act’). 2. The assessee has raised the following grounds of appeal:- “1. That on the facts and circumstances of case and in law, the Ld. CIT(A) and the Ld. AO ought to have applied the provision of section 56(2)(x) of Income-tax Act, 1961 (hereinafter referred to as 'the Act') in respect of purchase of immovable property by the appellant in the previous year relevant to the assessment year 2017- 18 and not in the previous year relevant to assessment year 2018-19.
That on the facts and circumstances of case and in law, the orders passed by the Ld. CIT(A) and the Ld. AO are unsustainable and bad in law and hence, the same may kindly be struck down. 3. That on the facts and circumstances of case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in charging interest under section 234A and 234B of the Act.” 3. Apart from this, assessee has raised following additional grounds of appeal:-
“1. That on facts and circumstances of the case and in law, the Ld. CIT(A) erred in passing the order under section 250 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') without considering the stamp duty value as on date of agreement as per first proviso to section 56(2)(x) of the Act on the alleged ground that the agreement to sell is not registered without appreciating the fact that there is no mandate under the first proviso to section 56(2)(x) of the Act to register the agreement fixing the amount of consideration for transfer of immovable property. 2. That the appellant craves leave to add to and/or amend, alter, modify or rescind the grounds hereinabove before or at the time of hearing of appeal.” 4. Brief facts of the case are that the assessee purchased a rice mill vide registered sale deed dated 21st March, 2018, for a consideration of ₹86 lacs. However, the ld. Assessing Officer (in short ‘ld. AO’), during the assessment proceedings, noticed that the stamp duty value of the property was much higher. He therefore, invoking the provisions of Section 56(2)(X) of the Income-tax Act, 1961 (the Act), added the differential amount of ₹1,05,84,328/- into the income of the assessee. The ld. CIT (A) confirmed the addition made by the ld. AO.
Before us, ld. Counsel for the assessee has stated that the agreement for sale of the aforesaid property was entered into on 30.12.2016 and that the possession of the property was also handed over by the assessee to the vendor on the same date. He, inviting our attention to the said unregistered agreement, stated that in fact the transfer of the property was complete on the date of execution of agreement itself, and that the registration of sale deed
“21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression “or in any other manner whatsoever” in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision. 22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression “enabling the enjoyment of” takes color from the earlier expression “transferring”, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. 1 The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact.” 6. The ld. Counsel for the assessee has submitted that the transfer of property u/s 2(47) of the Act was complete on the date of execution of the agreement and therefore, the addition, if any, was to be made u/s 56(2)(x) of the Act, that could have been made by the AO into the income of the assessee for A.Y. 2017-18 and not in the A.Y. 2018-19.
We have considered the above submission of the ld. Counsel for the assessee and gone through the documents and the copy of the agreement which has been placed at page no. 1-4 of the Paper Book. We have gone through the said agreement and perusal of the
“AGREEMENT FOR SALE BETWEEN Nureman Ansary, son of late Anasri Ansary, Muslim by faith resident of village Rangamati, Tola Pattar, P.O. Rangamati, P.S. Arsha, District Purulia, hereinafter referred to as First Party. AND Tamal Kundu, son of Tarapada Kundu, Hindu by faith, business by occupation resident of 40/A W.C. Banerjee street, Kolkata 700006 hereinafter referred to as Second Party. WHEREAS the First party is the owner of Preeti Rice Mill, sim tuated in Arsha, District Purulia. And owing to certain legal necessity he intend to sell the said Rice Mill fully described in the Schedule below:- AND WHEREAS the Second Party hearing of the Offer have accepte the proposal of the First Party. AND NOW IT IS AGREED BETWEEN BOTH THE PARTIES THE SALE WILL BE CONDUCTED AS PER FOLLOWING TERMS & CONDITIONS: 1. That the Second party shall pay sum of Rs. 86,00,000/- (Eighty Six lakhs) as full & final payment for sale of Preeti Rice Mill along with factory plant & machinery. 2. That, the Second party will have to pay the said amount within 30.12.2016. 3. That the First party will be bound to execute sale Deed within 2 years of receipt of the entire consideration money of Rs. 86,00,000/-. 4. That the First party on receive of the said amount will immediately deliver possession of the Factory premises to the Second party. 5. That, the Second party shall have right to take electric connection, Trade License, Govt. Permit and all other necessary licenses to run the Rice Mill and the First Party will not give any Objection against the Second party before any authority of law or Govt. office. 6. That, on payment of Rs. 86,00,000/- on 30.12.2016. the Second party shall have right to run business in the factory premises.
8.1 So far as reliance of the ld. Counsel for the assessee on the case laws (supra) is concerned, the facts of the case in hand are quite distinguishable. So far as reliance of the ld. Counsel for the
The ld. Counsel for the assessee, at this stage, has taken an alternative ground that the sale consideration was settled on the date of the agreement i.e. 30th December, 2016 and that all the amount was paid on the said date. He therefore, has contended that the collector rate/ circle rate as on the date of execution of the agreement should be taken for the purpose of making any addition u/s 56(vi)(2) of the Act. Though, this ground has been taken by the
The appeal of the assessee stands partly allowed.
Order pronounced in the Court on 20th November, 2024 at Kolkata.
Sd/- Sd/- (SANJAY AWASTHI) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated 20.11.2024 *SS, Sr.Ps
आदेश की प्रतततिति अग्रेतषत/Copy of the Order forwarded to : अिीिार्थी / The Appellant 1. प्रत्यर्थी / The Respondent 2. संबंतित आयकर आयुक्त / Concerned Pr. CIT 3. 4. आयकर आयुक्त ) ( अिीि / The CIT(A)- तवभागीय प्रतततनति आयकर अिीिीय अतिकरण कोिकाता/DR,ITAT, Kolkata, 5. , , गार्ड फाईि / Guard file. 6.
आदेशानुसार/ BY ORDER, TRUE COPY
Sr. PS/ Assistant Registrar आयकर अिीिीय अतिकरण ITAT, Kolkata
