Pay Income Tax if Land Purchased below Stamp Duty : ITAT

ORDER

Vikram Singh Yadav, Accountant Member – This is an appeal filed by the Revenue against the order of the ld. CIT(A), Alwar dated 11.01.2018 for the assessment year 2014-15 and the cross objection filed by the assessee wherein the respective grounds of appeal are as under:—

ITA No.449/JP2018 (Revenue’s Grounds of appeal):

CO No. 10/JP/2018 (Assessee’s Grounds of appeal):

2. Briefly the facts of the case are that the assessee has purchased three plots of land during the year under consideration and has claimed that these plots of land are agricultural land and doesn’t fall in the definition of capital asset as per the provisions of Section 2(14) of the Act. The AO, however invoked the provisions of Section 56(2)(viib) of the Act and made an addition of Rs. 1,74,06,224/- which includes an amount of Rs. 1,51,06,224/- being difference between the sale consideration as per the sale deeds and the stamp valuation determined by the Stamp Valuation Authority, and Rs. 23 lakhs as unexplained investment in purchase of these properties. The AO however, accepted the source of expenses incurred on account of stamp duty and other transfer charges amounting to Rs. 9,38,600/-.

3. On appeal by the assessee, the ld. CIT(A) has held that the land in question being an agricultural land is not a capital asset as per the provisions of Section 2(14) of the Act and therefore, not being a capital asset, the transaction does not attract the provisions of Section 56(2)(viib) of the Act. Further, the ld. CIT(A) has held that the assessee in the business of sale/purchase of property and the land so purchased is his stock-in-trade and since the stock-in-trade is also excluded from the definition of capital asset, on this account as well, the provisions of Section 56(2)(viib) of the Act are not attracted. Accordingly, he deleted the addition of Rs. 1,51,06,224/- in the hands of the assessee and granted the necessary relief. He however reduced the addition from 23,00,000/- to Rs. 8,41,000/- made by AO as unexplained investment in purchase of these properties. Now, the Revenue is in appeal against the deletion of addition made by the AO and the assessee is in appeal against the addition so confirmed by the ld CIT(A).

4. We have heard the rival contentions and perused the material available on record. The relevant provisions of section 56(2)(vii)(b) which are under consideration read as under:

‘(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 but before the 1st day of April, 2017,—

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—

Explanation.—For the purposes of this clause,—

5. The above provisions thus provides that where an individual receives in any previous year, from any person or persons on or after the 1st day of October, 2009 but before the 1st day of April, 2017, any immoveable property 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 shall be income chargeable to tax under the head “Income from other sources”.

6. In the instant case, the assessee has purchased three plots of land during the year under consideration. The sale consideration as per the respective sale deeds amounts to Rs 23,00,000 and the stamp duty value of such properties as determined by the Stamp duty authority amounts to Rs 1,74,06,224/- and therefore, there is difference to the tune of Rs 1,51,06,224/- between the sale consideration as per the sale deeds and the stamp valuation determined by the Stamp Valuation Authority. To this extent, the facts are not disputed and have been accepted by both the parties. The limited point of dispute is the nature of immoveable property which has been purchased by the assessee. The assessee’s contention is that which he has purchased are three plots of agricultural land and the same doesn’t fall in the definition of capital asset as per the provisions of Section 2(14) of the Act and provisions of section 56(2)(vii)(b) cannot be invoked. The Revenue’s contention is that the provisions of Section 56(2)(vii)(b) talks about any immoveable property and thus even an agriculture land falls under the definition of an immoveable property and the provisions of Section 56(2)(vii)(b) are clearly attracted. On reading of provisions of 56(2)(vii)(b), we find that it refers to any immoveable property and the same is not circumscribed or limited to any particular nature of immoveable property. It refers to any immoveable property which by its grammatical meaning would mean all and any property which is immoveable in nature, i.e, attached to or forming part of earth surface. In the instant case, the assessee has purchases three plots of agricultural land and such agricultural land is clearly an immoveable property. Whether such agriculture land falls in the definition of capital asset u/s 2(14) or whether such agriculture land is stock-in-trade of the assessee, in our considered view, are issues which cannot be read in the definition of “any immoveable property” used in context of section Section 56(2)(vii)(b) and are thus not relevant. In the result, we set-aside the order of the ld CIT(A) to this extent and upheld the order of the Assessing officer. In the result, ground no. 1 of the Revenue’s appeal is allowed.

7. Regarding the addition of Rs. 23 lakhs on account of unexplained investment in purchase of three properties, we have gone through the findings of the AO and the ld CIT(A) and other material available on record. We hereby affirm the following findings of the ld. CIT(A) which are contained at para 6.4 and 6.5 of his order reproduced as under:—

“6.4 The addition of Rs.23 lakhs have been made on the unexplained investment in the purchase of the above mentioned lands as per details below:

In the assessment order the A.O. had accepted the source of expenses incurred on account of stamp duty and other transfer charges amounting to Rs. 9,38,600/-. However, the purchase consideration amounting to Rs. 23 Lakhs have been added as unexplained investment u/s. 68 of the Act. During appellate proceedings, the appellant has filed additional evidences in support of its claim under rule 46A of the IT Rules, 1962. For the reasons mentioned therein the same has been taken on record and the additional evidences were sent to A.O for his examination and comments. The A.O has submitted the remand report vide letter dated: 09/10/2017. The copy of the remand report was forwarded to the appellant for his cross reply. The appellant has filed the cross reply vide letter dated: 26/12/2017.

6.5 I have considered the remand report and the cross reply submitted by the appellant. It is seen that following persons have attended the remand proceedings and confirmed their transactions with the appellant:

As per the chart above the source of Rs. 15,40,000/- have been reasonably explained. I have also taken into consideration that some of the persons from whom the appellant has claimed advances have either not attended to the remand proceedings or their addresses were incomplete. One of such person Sh. Yogesh Sharma from whom the appellant has claimed to have got advance of Rs.1,50,000/- has denied the transaction.

The appellant has also declared an income of Rs.5,77,600/- in the return of income besides a car sold by him for a consideration of Rs.3,80,000/-and the appellant has claimed to have used the money for the purchase of the land.

After taking into consideration all the above mentioned facts, a total of Rs. 24,97,600/- was available with the appellant from the explained sources. The total investment in the land including stamp duty and other transfer charges comes to Rs. 32,38,600/-. Considering a reasonable household expenditure of Rs. 1 lakh, it is reasonable to infer that investment to the extent of Rs. 23,97,600/- is explained. Therefore, the balance investment of Rs. 8,41,000/- remain unexplained and liable to be taxed U/s. 69 of the Act. Accordingly, the addition on this account is reduced to Rs. 8,41,000/-. Appellant’s ground of appeal on this issue is partly allowed.”

8. In the result, ground no. 2 of the Revenue’s appeal and ground no. 1 of the assessee’s cross objection are dismissed.

In the result, the appeal of the Revenue and cross objection of the assessee are disposed off with above directions.