KALUBHAI MANJIBHAI KOTHIA,SURAT vs. ITO, WARD-3(3)(3), SURAT

Grounds of appeal

In response to the same, the assessee vides his letter dated 14/11/2016 submitted before the assessing officer, as under: "......... With reference to subject above I would like to inform you that I have received final show cause notice and intimation about withdrawal of letter requested to reference made to the Departmental DVO in our case. Herewith we further request you sir that withdrawal of letter was not as per law. Reference to departmental DVO is our basic right and opportunity being heard must be given in our case. So my humble request you sir please make reference to departmental DVO for valuation of immovable property purchased at Jahangirabad & my investment is Rs.35,00,000/- (i.e.12.5%). The said property was purchased by us at Rs. 2,80,00,000/- & not at any other price, the value decided by stamp duty authority is only for the purpose of calculation of stamp duty & payment of stamp duty & hence same can never be consider as purchase value. Further, we have already finalized the said transaction as on at. 29/11/2010 & entered into satakhat for the said transaction. So, the date of actual transaction is 29/11/2010 which kindly be noted in your good record. So, we have purchased our land at Rs.2,80,00,000/- as on dated 29/11/2010 and the said value is actual purchased value & jantri rate adopted by sub registrar at the time of registration of deed is only for the purpose of registration of deed & payment of stamp duty. So, the same can never be changed if stamp duty rate changed. However if your goodness has any doubt above said value of property as on date of satakhat then I request your goodness please refer the same for the valuation to the compete DVO for valuation as on dt.29/ 11/2010.”

However, assessing officer rejected the contention of the assessee and held that as per section 56(2)(vii)(b) of the Act, date of Agreement (Satakhat) cannot be taken for consideration of stamp duty value of the property for the purpose of section 56(2)(vii)(b), since the assessee has failed to fulfill the condition of the said Section. Further, the assessee vide letter dated 14/11/2016 stated that reference to departmental DVO is our basic right and opportunity being heard must be given in our case. In this regard, it is pertinent to mention that vide this office letter no. SRT/ITO -2(3)(3)/MNM/2016-17 dated 13/10/2016 addressed to the Valuation Officer and copy marked to the assessee, it was specifically mentioned that , the matter referred to valuation was withdrawn due to the fact that the first payment for the property was incurred on 20/10/2012 whereas the date of satakhat is 29/11/2010 and that was in view of , 376 & 377/SRT/2019/AY.2014-15 Kalubhai M. Kothia, Mansukhbhai N. Makhani & Jayantibhai P. Patel the fact that the case does not fall under the proviso of section 56(2)(vii)(b) of the I.T. Act, 1961. Further, it also pertinent to mention that the assessee has never requested for referring the case to DVO for valuation of the property as on date of registered purchase deed. In view of the above discussion, AO noted that the assessee has jointly purchased the impugned property for a total consideration of Rs.2,80,00,000/-. However, fair market value/jantry value under section 56(2)(vii)(b) of the Act (i.e. jantry value – actual consideration), to the extent of the share of the assessee (i.e. 12.50%) is Rs.47,64,188/-. Accordingly, the said differential amount of Rs.47,64,188/- was treated as income from other sources of the assessee.

Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has reduced the value of the land to Rs.3.75 crores from Rs.6.61 crores, observing as follows: “7. Discussion & Decision of the Appellate Authority 7.1 The two appellants are co-purchases of land. The Ld. AO has applied sec. 56(2)(vii)(b) and adopted Jantri Value and made addition of Rs.47.64 lacs in each hands. The AR has contested the same on 3 reasons which are adjudicated below, 7.2 Ground No.1.1 7 1.2 – The transaction was completed in F.Y.2010-11 by way of Satakhat dated 29.11.2010. So Sec. 56(2)(vii)(b) is not applicable. This reason given by AR is considered carefully but it is seen that the impugned satakhat is not registered & payments are in cash. The registration of satakhat is not registered & payments are in cash. The registration of satakhat with Sub-Registrar establishes the date without any doubt. Similarly cheque payment, remittance through bank also constitutes unimpeachable evidences regarding date of transaction. In absence of both, it cannot be definitively said that satakhat was executed & payment were made on that date. These unregistered satakhat and cash payments give rise to valid presumption of ante-dating to avoid applicability of sec. 56(2)(vii)(b). Hence, these grounds are rejected. 7.3 I find that Ld.AO has referred the property for valuation to the DVO, however, the report was not received before the time-barring date. Hence, Ld.AO adopted Jantri Value of Rs.6.61crs for the land (appellants shares i being 12.5% each). Now that the report of DVO has been received the Ld.AO is mandatorily required to adopt the value estimated by DVO. It is sad that this issue needs to be addressed in appeal proceedings. The Ld.AO is directed to rectify his order as per the report of DVO. , 376 & 377/SRT/2019/AY.2014-15 Kalubhai M. Kothia, Mansukhbhai N. Makhani & Jayantibhai P. Patel 7.4 Ground No. 1.4 - The DVO has valued the land without considering defects in it. The AR has contested the value arrived at by DVO for the reasons narrated in his submission. I have considered the same. I find that the DVO has valued the land at Rs.3.75 crs. in lieu of Rs.6.61 crs. as per Jantri Value. This is a sizeable discount given by the DVO. The DVO presumably has considered the defects narrated by AR before arriving at this discounted value. Hence, I do not see any reason to interfere in value of DVO. 8. As a result both the appeals are dismissed with a direction to Ld.AO to rectify their orders in accordance with valuation report of DVO as the same as the same is binding on him.”

Aggrieved by order of the ld. CIT(A), the assessee is in appeal before us.

Learned Counsel for the assessee submitted that amendment in section 56(2)(vii)(b) of the Act, was made by Finance Act, 2013, with effect from 01.04.2014, whereas agreements (satakhat) were made on 29.11.2010 in case of these three assessees. Thus, agreements to purchase in case of these assessees were made prior to 01.04.2014, therefore in case of these three appeals the provisions of section 56(2)(vii)(b) of the Act, do not apply, hence assessment orders passed by the assessing officers may be quashed.

Learned Counsel, further stated that these three appeals of different assessees are squarely covered by the judgment of Co-ordinate Bench of Surat in the case of Parinda Bhaveshkumar Borda (in order dated 31.08.2021.

On the other hand, Ld. DR for the Revenue submitted that assessee has submitted only the payment details by way of bank statements, however there were no original agreements. The agreements produced before the Bench were anti-dated, therefore these appeals are not covered by the judgment of the Co- ordinate Bench, as claimed by the ld Counsel. The Ld. DR also submitted that no substantial amount was paid before the original agreements. Therefore, these appeals should be dismissed and addition made by the assessing officer may be confirmed. , 376 & 377/SRT/2019/AY.2014-15 Kalubhai M. Kothia, Mansukhbhai N. Makhani & Jayantibhai P. Patel 18. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that in assessee’s case under consideration, agreement (satakhat) was made on 29.11.2010, which is prior to 01.04.2014, therefore, provisions of section 56(2)(vii)(b) of the Act, do not apply in these three assessees. We narrate the basic information in case of these three appeals, which is as follows:

With this background of these three appeals, we find merit in the submission of ld Counsel for the assessee to the effect that these three appeals of different assessees are squarely covered by the judgment of Co-ordinate Bench of Surat in the case of Parinda Bhaveshkumar Borda (in order dated 31.08.2021. We see no reasons to take any other view of the matter than the view so taken by the Division Bench in the , 376 & 377/SRT/2019/AY.2014-15 Kalubhai M. Kothia, Mansukhbhai N. Makhani & Jayantibhai P. Patel case of Parinda Bhaveshkumar Borda (supra). In this order, the Tribunal has inter alia observed as follows: “6. We have considered the rival submissions of the parties and have gone through the orders of the lower authorities carefully. We have also seen the various document placed on record, which consist of written submissions before ld CIT(A), reply to the show cause notice before AO, copy of registered sale deed dated 10.09.2013, copy of the agreement to sale dated 28.03.2013, copies of the bank statement of purchaser showing the payments through cheques. We have also deliberated on the various case laws relied by the ld. AR for the assessee. During the assessment the AO made addition of Rs. 10,35,918/- by taking view that the assessee along with her co-owners have shown sale consideration at Rs. 1.16 Crore, however, the SVA at the time of registration of sale deed valued the property at Rs. 2.9 Crore. The assessee is having 1/10 share in the said property, thereby the difference thereof (to the extent of assessee’s share) was added under section 56(2)(vii)(ii) of the Income-tax Act. As recorded above the assessee filed detailed written submissions before ld CIT(A). We find that the ld CIT(A) concurred with the finding of the AO by holding that that Finance Bill, 2013 was introduced in February, 2013 and the same was amended to include cases of inadequate consideration. The amendment was widely known in February, 2013 itself. It was also held that the contention of the assessee that agreement executed prior to March 2013 will not be covered under section 56(2)(vii)(b)(ii), the agreement appears made in March, 2013 is not registered, the date cannot be independently verified and probably the agreement composition being anti date too. We find that neither the AO nor the ld CIT(A) investigated about the non-genuineness of the agreement. No notice to the seller was issued by ld CIT(A) before taking view that ‘probably the agreement composition being anti date too’. The ld CIT(A) took his view only on his presumption and assumption . The AO invoked the provision of section 56(2)(vii)(b)(ii), without having any evidence of excess consideration over and above the sale deed. in addition to the sale consideration. We further find that the assessee entered in to agreement with the seller on 28.03.2013. The substantial part of the sale consideration was also paid to the seller, which is about 80% of the total sale consideration. Though, ultimately the sale deed was registered on 10.09.2013. The details of sale consideration is also mentioned in the registered sale deed, which strengthen the claim of the assessee that substantial part of consideration was paid on the day of execution of the initial agreement. The assessee claimed that the possession of the land was also obtained by them at the time of agreement. This fact is not disputed by the AO. 7. Before us, the ld AR for the assessee vehemently submitted that when the assessee entered in agreement with the seller, paid substantial consideration and obtained possession, the sub-clause-(ii) of clause (vii) of sub-section (2) of section 56 was not on the statue book and it was brought by way of amendment in Finance Act-2013 w.e.f. 01.04.2014 and relied on the decision of Tribunal in ACIT Vs Anala Anjibabu (supra). We find the coordinate bench of tribunal in ACIT Vs Anala Anjibabu (supra), while considering almost similar facts held as under , 376 & 377/SRT/2019/AY.2014-15 Kalubhai M. Kothia, Mansukhbhai N. Makhani & Jayantibhai P. Patel “6.2. ----------------- Thus where any individual or Hindu Undivided Family receives any immovable property without consideration, the stamp duty value of such property required to be considered as the consideration paid and the said amount to be taxed u/s 56(2)(vii)(b) of the Act. In the instant case, as discussed earlier the assessee has paid the consideration and there was no evidence from the department to show that the assessee has paid the excess consideration over and above the sale deed. With effect from 01.04.2014, the Act has been amended and the new sub clause (ii) has been introduced to section 56(2)(vii)(b)in the statute which reads as under : (vii) where an individual or a Hindu undivided family receives, in any but before 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,— (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: As per the provisions the Act from the A.Y.2014-15 sub clause (ii) has been introduced so as to enable the AO to tax the difference consideration if the consideration paid is less than the stamp duty value. The AO is not permitted to invoke the provisions of section 56(2)(vii)(b)(ii) in the absence of sub clause (ii) in the Act as on the date of agreement.” 8. Thus, in view of the aforesaid factual and legal discussions, we find that in absence of sub-clause (ii) in the statue book as on the date of agreement to sale of the property, the AO was not entitle to invoke the said provision. Hence, the ground of appeal

Since the issue involved in and ITA No.376/SRT/2019 shall apply mutatis mutandis to these two appeals also.

In the result, the appeals filed by the assessees (in & 377/SRT/2019 5 and 562/SRT/2019), are allowed.