Shardaben Hiralal Prajapati, Surat vs Department Of Income Tax

ITA No. 2073/Ahd/2011 िनधा रण वष /Assessment Year: 2005-06 Income-tax Officer, Vs. Smt. Shardaben Hiralal Prajapati, Ward-2(4), 2/627, Surmavad, Surat Rustampura, Surat PAN : ABCPP 1405 F

अपीलाथ / अपीलाथ / (Appellant) ू यथ यथ / थ / (Respondent)

Revenue by : Shri Roopchand, Sr. DR Assessee(s) by : Shri Divyakant Parikh, AR सु नवाई क! तार#ख / Date of Hearing : 22/04/2015 घोषणा क! तार#ख / Date of Pronouncement: 24/04/2015

आदे श/O R D E R

PER G.D. AGRAWAL, VICE PRESIDENT:

This is an appeal filed by the Revenue and is directed against the order of the Commissioner of Income-tax(Appeals)-II, Surat dated 07.06.2011 pertaining to the Assessment Year 2005-06.

2. The only ground raised in this appeal by the Revenue reads as under:

On the facts and circumstance of the case and in law, the Ld. CIT(A)-II, Surat has erred in deleting the difference in value of Rs.19,48,500/- (Rs.42,48,500 - Rs.23,00,000) and corresponding value of differential stamp ITA No.2073/Ahd/2011

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duty of Rs.1,62,875/- were added to the total income of the assessee u/s 69B of the Income tax Act, 1961.

3. At the time of hearing before us, the ld. Departmental Representative sought for time on the ground that some information is required from the Assessing Officer. However, it is an old matter and we find that all the necessary details are already on record. Therefore, the ld. Departmental Representative's request for adjournment is rejected and we proceeded for hearing the appeal.

4. It is submitted by the ld. Departmental Representative that during the accounting year relevant to assessment year under consideration, the assessee had purchased non-agricultural land for a consideration of Rs.23 lacs. However, from the sale deed, it was found that the Stamp Duty Authorities have valued this property at Rs.42,48,500/-. The assessee, as a buyer of the land, has paid the stamp duty on the above value. He, therefore, submitted that the actual purchase price can never be less than the stamp duty valuation and therefore, the Assessing Officer rightly treated the difference between the stamp duty valuation and sale price shown by the assessee as unexplained investment u/s 69B of the Act. The CIT(A) deleted the addition without properly considering the facts of the case. He, therefore, submitted that the order of the CIT(A) should be reversed and that of the Assessing Officer should be sustained.

5. The ld. Counsel for the assessee, on the other hand, stated that merely because the stamp duty valuation was more than the actual price consideration cannot be a ground for making addition u/s 69B of the Act. The Revenue has not brought on record any evidence that the payment ITA No.2073/Ahd/2011

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made by the assessee was more than the payment recorded in the sale deed. He further submitted that the section 50C wherein the stamp duty valuation is considered the actual sale price for the purpose of capital gain is applicable only in the case of seller and corresponding presumption cannot be made in the case of the buyer. In support of this contention, he relied upon the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Meghjibhai Popatbhai Virani vide Tax Appeal No.46 of 2013.

6. We have carefully considered the arguments of both the sides and perused the material placed before us. The Assessing Officer made the addition for the difference between the stamp duty valuation and actual sale consideration as unexplained investment u/s 69B. However, the actual sale price and the stamp duty valuation can be different for variety of reasons. That if the purchase price paid by the assessee is less than the stamp duty valuation, it may be good and sufficient cause for making necessary inquiry by the Assessing Officer so as to find out whether the assessee made any payment over and above the disclosed sale consideration; but, it by itself is not sufficient to presume that the assessee made the investment which was not disclosed by the assessee so as to invoke the provisions of Section 69B. Admittedly, the Assessing Officer has not brought on record any evidence that the actual purchase consideration paid by the assessee was over and above the sum of Rs.23 lacs recorded in the sale deed. The deeming provision of Section 50C wherein the stamp duty valuation is considered actual sale consideration for the purpose of capital gain is applicable only in the case of seller and not in the case of buyer for the relevant assessment year. While taking this view, we derive support from the decision of Hon'ble Jurisdictional High Court in the case of Meghjibhai Popatbhai Virani (supra). In view of above factual and legal ITA No.2073/Ahd/2011

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position, we do not find any justification to interfere with the order of the CIT(A) and the same is sustained. Thus, the Revenue's appeal is dismissed.

7. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the Court on 24th April, 2015 at Ahmedabad.

Sd/- Sd/-

(RAJPAL YADAV) (G.D. AGRAWAL) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad; Dated 24/04/2015 Biju T., PS

षत Copy आदे श क! ूितिल)प अमे)षत/ of the Order forwarded to : 1. अपीलाथ / The Appellant 2. ू यथ / The Respondent. 3. संबंिधत आयकर आयु, / Concerned CIT 4. आयकर आयु,(अपील) / The CIT(A)

5. )वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file.

/ BY ORDER, आदे शानु सार

TRUE COPY

Dy./Asstt.Registrar) उप/सहायक पंजीकार ( उप/ अिधकरण, अहमदाबाद / आयकर अपीलीय अिधकरण, ITAT, Ahmedabad