NISHA GUPTA,KOLKATA vs. ITO, KOLKATA

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ITA 379/KOL/2023Status: DisposedITAT Kolkata05 January 2024AY 2014-2015Bench: SRI RAJESH KUMAR, ACCOUNTANT MEMBER & SONJOY SARMA (Judicial Member)5 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the difference between the sale consideration and stamp duty value was less than 10%, thus falling within the permissible limit under Section 56 read with Section 50C, and directed deletion of the addition. The second addition was deleted as it was beyond the scope of limited scrutiny.

What were the facts?

The assessee purchased a property for Rs. 1,65,39,200, but the stamp duty value was Rs. 1,80,71,800. The AO added the difference of Rs. 15,32,600 under Section 56(2)(vii)(b). Additionally, an addition of Rs. 1,50,624 was made for an unexplained difference in capital balance.

What were the issues?

Whether the difference between sale consideration and stamp duty value, when less than 10%, is taxable under Section 56(2)(vii)(b). Whether an addition made beyond the scope of limited scrutiny is valid.

Which sections of the Income-tax Act were involved?

Section 56(2)(vii)(b),Section 50C(1),Section 143(2)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA

Before: SRI RAJESH KUMAR & SONJOY SARMA

For Appellant: Adv. &

order

: January 5th, 2024 ORDER

Per Rajesh Kumar, Accountant Member:

1.

This appeal preferred by the assessee is against the order of Learned Commissioner of Income-tax (Appeals)- NFAC, Delhi [hereinafter referred to Ld. ‘CIT(A)’] dated 24.02.2023 for the Assessment Year (in short ‘AY’) 2014-15.

I.T.A. No.: 379/KOL/2023 Assessment Year: 2014-15 Nisha Gupta. 2. The assessee has raised two issues in the grounds of appeal

. The first issue is against the confirmation of addition of Rs. 15,32,600/- by ld. CIT(A) as made by the Assessing Officer (in short ld. 'AO') u/s 56(2)(vii)(b) of the Income Tax Act, 1961 (in short the 'Act').

3. The facts in brief are that during the year the assessee has purchased a property on 27.08.2013 situated at Panchwaati Tower, Harmu Road, P.S. Sukhdeonagar, Dist. Ranchi for a total consideration of Rs. 1,65,39,200/- but for the purpose of stamp duty and registration of documents the property was valued at Rs. 1,80,71,800/-. The AO after referring to the provisions of Section 56(2)(vii)(b)(ii) of the Act observed that where sale consideration of an immovable property is less than the stamp duty value as per the Stamp Valuation Authority and the amount exceeds Rs. 50,000/-, the same has to be added to the total income of the assessee. Accordingly, the AO after issuing show cause notice, added a sum of Rs. 15,32,600/- to the income of the assessee.

4. In the appellate proceedings ld. CIT(A) dismissed the appeal of the assessee for non-appearance despite granting six opportunities.

5. After hearing the rival contentions and perusing the material on record, we find that the difference between the sale consideration and stamp value as per the Stamp Valuation Authority is less than 10% and therefore, the difference falls within the range of 10% as provided under Section 56 read with Section 50C of the Act. Therefore, the same cannot be added in view of the I.T.A. No.: 379/KOL/2023 Assessment Year: 2014-15 Nisha Gupta. third proviso to Section 50C(1) of the Act. The case of the assessee finds support from the decision of Coordinate Bench in the case of Joseph Mudaliar vs DCIT reported in [2021] 130 taxmann.com 250 (Mumbai-Trib. Wherein a similar question has been decided in favour of the assessee. The operative part of the decision is extracted as under:

“17. It is further relevant to observe, section 50C or for that matter section 56(2)(vii)(b)(ii) are identical provisions. Only difference being, 50C is applicable to the seller of an immovable property, whereas, the later provision is applicable to the buyer of the property. Therefore, a benefit given to a seller of the property in respect of marginal variation cannot be denied to the buyer of the property, since, they stand on the same footing. This aspect of the issue has also been considered by the co-ordinate bench in case of Shri Sandip Patil v. ITO (supra), wherein, the co-ordinate bench has held that there cannot be two different fair market value in respect of the very same property, i.e. one at the hands of the seller and the other at the hands of the buyer. Thus, in our view, if the difference in valuation between the value determined by the stamp duty authority and the declared sale consideration is less than 10%, no addition can be made under section 56(2)(vii)(b)(ii) of the Act.

18.

Having held so, the second aspect of the issue which requires consideration is whether the exception to section 50C(1) by way of third proviso and section 56(2)(x)(b)(B) would apply prospectively or retrospectively. The issue is no more res integra in view of a number of decisions of different benches of the Tribunal. The Tribunal has consistently expressed the view that since the aforesaid amendments made by Finance Act, 2018 with effect from 1-4-2019 are curative in nature and beneficial provisions, it would apply retrospectively. In this context, we get support from the following decisions:- 1. Sandip Patil (supra) 2. Maria Fernandes Cheryl (supra) 19. Thus, keeping in view the discussions hereinabove, we delete the addition of Rs. 23,30,694/-. This ground is allowed.”

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