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2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. The assessee is proprietor of M/s Mahendra Gulkand Works and filed his return of income on 29/09/2015 declaring total income of Rs.7,08,230/-. During the scrutiny assessment, the A.O. noted that the assessee has purchased a Flat No. 3105, E-Wing, Whispering Tower, LBS Marg, Mulund (W), Mumbai for a consideration of Rs. 1,38,03,550/- on 17/09/2014 whereas the Sub-Registrar, Mumbai has determined the market value for the purpose of stamp duty at Rs. 1,53,43,036/-. Accordingly, the A.O. proposed to invoke provisions of Section 56(2)(b) of the Income Tax Act, 1961 (in short, the Act) to make the addition of the differential amount between the same consideration shown in the sale documents and stamp duty valuation taken by the Sub-Registrar. The assessee has explained that the flat was booked by the assessee on 10/10/2010 and an amount of Rs. 12,38,090/- was paid as earnest money at the time of booking of the said flat. The assessee produced proof of payment on 10/10/2010 as well as 14/10/2010 of Rs. 2,51,000/- and Rs. 9,87,090/- respectively through cheques. Though, the A.O. has not disputed the payment made by the assessee on 10/10/2010 and 14/10/2010, however, the A.O. has denied this claim of the assessee and taking fair market value of the flat as on the date of

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booking in view of provisions of Section 43-CA of the Act on the ground that the assessee has not produced any agreement prior to the sale agreement registered on 17/09/2014. The A.O. accordingly, made an addition of Rs. 15,39,496/- being the difference between the stamp duty valuation and the sale consideration shown by the assessee.

4. The assessee challenged the action of the A.O. before the ld. CIT(A) but could not succeed as the ld. CIT(A) has upheld the addition made by the A.O. on the similar reasoning that the assessee has failed to produce the agreement with the builder at the time of booking of the flat.

5. Before us, the ld AR of the assessee has submitted that the assessee has produced the letter issued by the builder dated 16/10/2017 wherein the builder has confirmed the amount received at the time of booking through cheques and therefore, the booking itself is an agreement of purchase of the flat in question. Thus, the ld AR has submitted that once the assessee has brought on record a documentary evidence for the part payment of the purchase consideration on 10/10/2010 and 14/10/2010 through cheques and the builder has accepted the booking of the flat by the assessee on 06/09/2010 then the booking of purchase of flat coupled with the payment made by the

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assessee in pursuant to the booking of the flat constitute an agreement as provided U/s 56(2)(vii) of the Act. Thus, the ld AR has contended that the A.O. has wrongly adopted the stamp duty value as on the date of registration of the produced document on 16/09/2014 instead of stamp duty valuation on 06/09/2010.

6. On the other hand, the ld DR has submitted that the A.O. as well as the ld. CIT(A) has given a finding that the assessee has failed to produce any agreement as claimed by the assessee dated 06/09/2010 even the payments made by the assessee on 10/10/2010 and 14/10/2010 are not on the date of alleged agreement, therefore, the assessee has failed to satisfy the conditions provided in proviso to clause

(b) of Section 56(2)(vii) of the Act. She has relied on the orders of the authorities below.

7. We have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee has purchased a flat in question from HDIL vide sale agreement dated 16/09/2014 registered with Sub-Registrar, Mumbai for a consideration of Rs. 1,38,03,550/-. The valuation made for the purpose of stamp duty purposes at the time of registration is at Rs. 1,53,43,036/-. The A.O. has invoked the provisions of Section 56(2)(vii) of the Act for making the

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addition of the differential amount between the stamp duty valuation and purchase consideration paid by the assessee. The assessee has claimed that the assessee booked this flat on 06/09/2010 and made advance payment of Rs. 2,51,000/- on 10/10/2010 and Rs. 9,87,090/- on 14/10/2010 total amounting to Rs. 12,38,090/-. The A.O. has not disputed these payments made by the assessee vide two cheques dated 10/10/2010 and 14/10/2010. The only dispute is regarding whether the stamp duty valuation has to be taken as on the date of booking of the flat and part payment made by the assessee or at the time of final registration of the purchased document. The assessee produced confirmation of the builder regarding the payments received at the time of booking of flat of Rs. 2,51,000/- and Rs. 9,87,090/- through cheques. Vide letter dated 16/10/2017, the builder has specifically confirmed that the cost of flat is Rs. 1,38,03,550/- and the booking was done by payment of Rs. 2,51,000/- by cheque dated 10/10/2010 drawn on Andhra Bank. This fact is otherwise not disputed by the A.O. We further note that even in the final agreement which is registered on 16/09/2014, the payment schedule is given which is as per the various stages of completion of project, therefore, the parties at the time of booking, agreed for the payment as it is part of the agreement registered on 16/09/2014. All these facts and undisputed part payment

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made by the assessee through cheques on 10/10/2010 and 14/10/2010 clearly established that at the time of booking, there was an agreement between the parties regarding the purchase and sale of the flat in question and payment of the purchase consideration as per the agreed schedule between the parties. Thus, even if there is no separate agreement between the parties in writing but the agreement which is registered itself shows that the terms and conditions as contained in the said agreement were agreed between the parties at the time of booking of the flat. Hence, in our considered opinion that there was an agreement between the parties regarding purchase and sale of flat in question at the time of booking of the said flat and part payment made by the assessee on 10/10/2010 through cheque and there is subsequent payment on 14/10/2010 through cheque. Thus, the booking of the flat and part payment by the assessee constitute agreement between the parties as the terms and conditions which are reduced in writing in the agreement registered on 16/09/2014 relates to the performance of both the parties right from the beginning i.e. date of booking of the flat. The provisions of Section 56(2)(vii) of the Act reads as under:

56. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes, shall be chargeable to income-tax under the head "Income from other sources", namely :—

(i) dividends ; 53 [(ia) income referred to in sub-clause (viii) of clause (24) of section 2;] 54 [(ib) income referred to in sub-clause (ix) of clause (24) of section 2;]

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55 [(ic) income referred to in sub-clause (x) of clause (24) of section 2, if such income is not chargeable to income-tax under the head "Profits and gains of business or profession";]

56 [(id) income by way of interest on securities, if the income is not chargeable to income-tax under the head "Profits and gains of business or profession";]

(ii) income from machinery, plant or furniture belonging to the assessee and let on hire, if the income is not chargeable to income-tax under the head "Profits and gains of business or profession";

(iii) where an assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable from the letting of the said machinery, plant or furniture, the income from such letting, if it is not chargeable to income-tax under the head "Profits and gains of business or profession";

57 [(iv) income referred to in sub-clause (xi) of clause (24) of section 2, if such income is not chargeable to income-tax under the head "Profits and gains of business or profession" or under the head "Salaries";]

58 [(v) where any sum of money exceeding twenty-five thousand rupees is received without consideration by an individual or a Hindu undivided family from any person on or after the 1st day of September, 2004⁵⁹[but before the 1st day of April, 2006], the whole of such sum :

Provided that this clause shall not apply to any sum of money received—

(a) from any relative; or

(b) on the occasion of the marriage of the individual; or

(c) under a will or by way of inheritance; or

(d) in contemplation of death of the payer; or 60 [(e) from any local authority as defined in the Explanation to clause (20) of section 10; or

(f) from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in clause (23C) of section 10; or

(g) from any trust or institution registered under section 12AA^60a[or section 12AB].]

Explanation.—For the purposes of this clause, "relative"⁶¹

means—

(i) spouse of the individual;

(ii) brother or sister of the individual;

(iii) brother or sister of the spouse of the individual;

(iv) brother or sister of either of the parents of the individual;

(v) any lineal ascendant or descendant of the individual;

(vi) any lineal ascendant or descendant of the spouse of the individual;

(vii) spouse of the person referred to in clauses (ii) to (vi);] 62 [(vi) where any sum of money, the aggregate value of which exceeds fifty thousand rupees, is received without consideration, by an individual or a

8

Hindu undivided family, in any previous year from any person or persons on or after the 1st day of April, 2006⁶³[but before the 1st day of October, 2009], the whole of the aggregate value of such sum:

Provided that this clause shall not apply to any sum of money received—

(a) from any relative; or

(b) on the occasion of the marriage of the individual⁶⁴; or

(c) under a will or by way of inheritance; or

(d) in contemplation of death of the payer; or

(e) from any local authority as defined in the Explanation to clause (20) of section 10; or

(f) from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in clause (23C) of section 10; or

(g) from any trust or institution registered under section 12AA^64a[or section 12AB].

Explanation.—For the purposes of this clause, "relative" means—

(i) spouse of the individual;

(ii) brother or sister of the individual;

(iii) brother or sister of the spouse of the individual;

(iv) brother or sister of either of the parents of the individual;

(v) any lineal ascendant or descendant of the individual;

(vi) any lineal ascendant or descendant of the spouse of the individual;

(vii) spouse of the person referred to in clauses (ii) to (vi);] 65 [(vii) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009 ⁶⁶[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;

67 [(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:

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:

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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;]

(c) any property, other than immovable property,—

(i) without consideration, the aggregate fair market value of which exceeds fifty thousand rupees, the whole of the aggregate fair market value of such property;

(ii) for a consideration which is less than the aggregate fair market value of the property by an amount exceeding fifty thousand rupees, the aggregate fair market value of such property as exceeds such consideration :

Provided that where the stamp duty value of immovable property as referred to in sub-clause (b) is disputed by the assessee on grounds mentioned in sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property for the purpose of sub-clause (b) as they apply for valuation of capital asset under those sections :

Provided further that this clause shall not apply to any sum of money or any property received—

(a) from any relative; or

(b) on the occasion of the marriage of the individual; or

(c) under a will or by way of inheritance; or

(d) in contemplation of death of the payer or donor, as the case may be; or

(e) from any local authority as defined in the Explanation to clause (20) of section 10; or

(f) from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in clause (23C) of section 10; or

(g) from any trust or institution registered under section 12AA ^67a[or section 12AB]; ⁶⁸[ or]

68 [(h) by way of transaction not regarded as transfer under clause (vicb) or clause (vid) or clause (vii) of section 47.] Explanation.—For the purposes of this clause,—

(a) "assessable" shall have the meaning assigned to it in the Explanation 2 to sub-section (2) of section 50C;

(b) "fair market value" of a property, other than an immovable property, means the value determined in accordance with the method as may be prescribed⁶⁹;

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(c) "jewellery" shall have the meaning assigned to it in the Explanation to sub-clause (ii) of clause (14) of section 2;

(d) "property"⁷⁰[means the following capital asset of the assessee, namely:—]

(i) immovable property being land or building or both;

(ii) shares and securities;

(iii) jewellery;

(iv) archaeological collections;

(v) drawings;

(vi) paintings;

(vii) sculptures; ⁷¹[***]

(viii) any work of art; ⁷²[or]

72 [(ix) bullion;]

73 [(e) "relative" means,—

(i) in case of an individual—

(A) spouse of the individual;

(B) brother or sister of the individual;

(C) brother or sister of the spouse of the individual;

(D) brother or sister of either of the parents of the individual;

(E) any lineal ascendant or descendant of the individual;

(F) any lineal ascendant or descendant of the spouse of the individual;

(G) spouse of the person referred to in items

(B) to (F); and

(ii) in case of a Hindu undivided family, any member thereof;]

(f) "stamp duty value" means the value adopted or assessed or assessable by any authority of the Central Government or a State Government for the purpose of payment of stamp duty in respect of an immovable property;]

Thus, as per clause (b) of sub-section (2)(vii), if the assessee has received immovable property for a consideration which is less than the stamp duty value, the value of such property as exceeds such

11

consideration shall be chargeable to income tax under the head income from other sources. However, the first and second proviso carve out the exception for taking stamp duty value on the date of agreement prior to the date of registration if an amount of consideration or part thereof has been paid by any mode other than the cash before the date of agreement for transfer of such immovable property. Therefore, if there is an agreement between the parties, fixing the amount of consideration for transfer of immovable property prior to the date of registration and the purchaser has made the payment of consideration or part thereof before the date of that registered agreement for transfer by any mode other than cash then the value as determined for the stamp duty will be taken on the date of such earlier agreement. In the case in hand, all these facts are duly acknowledged by the parties in the registered agreement that earlier there was a booking of flat and the assessee paid part payment of consideration. Hence, the proviso first and second to Section 56(2)(vii) of the Act would be applicable in the case and the

12

the assessee booked the flat and made the part payment of consideration and consequently, if any difference being the stamp duty valuation is higher than the purchase consideration paid by the assessee, the same would be added to the income of the assessee under the provisions of Section 56(2)(vii)(b) of the Act.

8. In the result, appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court on 19^thAugust, 2020. Sd/- Sd/-

¼foØe flag ;kno½ ¼fot; iky jko½

(VIKRAM SINGH YADAV) (VIJAY PAL RAO)

ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur

fnukad@Dated:- 19/08/2020

*Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Shri Radha Kishan Kungwani, Ajmer.

2. izR;FkhZ@ The Respondent- I.T.O. Ward 1(2), Ajmer.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No.1106/JP/2018) vkn's kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar