Are stamp duty value and purchase consideration required to be added as income from other sources?

Last updated: 28 September 2021

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This case involves an appeal concerning whether the difference between the stamp duty valuation of a property and the actual purchase price should be treated as taxable income. The assessee argued that the Assessing Officer had considered all relevant facts, including the date of agreement versus registration, and that the Commissioner had wrongly invoked Section 263 of the Income Tax Act based on a change of opinion. The appeal questions the applicability of Section 56(2)(vii)(b)(ii) and the denial of a benefit under its proviso.

Court :
ITAT Jaipur

Brief :
The present appeal has been filed by the assessee against the order of the ld. Pr.CIT-2, Jaipur dated 28/02/2020 passed U/s 263 of the Income Tax Act, 1961 (in short, the Act) for the A.Y. 2015-16

Citation :
ITA No. 271/JP/2020

IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES "B", JAIPUR
BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM

ITA No. 271/JP/2020
Assessment Year: 2015-16

Naina Saraf,
B-93, Surya Marg, Tilak Nagar,
Jaipur.
Appellant

Vs.

Pr.CIT-2,
Jaipur.
Respondent

PAN No.: AEVPS4665N

Assessee by : Shri Mahendra Gargieya (Adv.)
Revenue by : Shri B.K. Gupta (CIT-DR)

Date of Hearing : 18/06/2021
Date of Pronouncement : 14/09/2021

ORDER

PER: SANDEEP GOSAIN, J.M.

The present appeal has been filed by the assessee against the order of the ld. Pr.CIT-2, Jaipur dated 28/02/2020 passed U/s 263 of the Income Tax Act, 1961 (in short, the Act) for the A.Y. 2015-16. The assessee has raised following grounds of appeal:

“1. The ld. Pr.CIT-2, Jaipur seriously erred in law as well as on the facts of the case in invoking the provisions of Section 263 of the Act and therefore, the impugned order dated 28/02/2020 u/s 263 of the Act kindly be quashed.

2.1 The ld. Pr. CIT 2, JAIPUR seriously erred in law as well as on the facts of the case in assuming jurisdiction u/s 263 of the Act by wrongly and incorrectly holding that the subjected assessment order passed u/s 143(3) dated 21.12.2017, was without considering the implication of the provisions of Sec. 56(2)(vii)(b)(ii) according to which, there was a difference of Rs. 16,42,994/- (i.e. 50% of the total difference of 32,85,987/-) between the declared sale consideration and the stamp duty. The assumption of jurisdiction u/s 263 being contrary to the provisions of law and facts on record, hence, the proceedings initiated u/s 263 of the Act and the impugned order dated 27.03.2019 deserves to be quashed.

2.2 The ld. Pr. CIT 2 JAIPUR, Jaipur erred in law as well as on the facts of the case in wrongly setting aside the assessment order date 21.12.2017 despite there being complete application of mind by the AO on the subjected issues and it was nothing but a case of change of opinion, based on which, assumption of jurisdiction u/s 263 is not permissible. The impugned order dt. 28.02.2020 therefore, lacks valid jurisdiction u/s 263 of the Act and hence, the same kindly be quashed.

Alternatively and without prejudice to the above

3.1 The ld. Pr. CIT 2, JAIPUR erred in law as well on the facts of the case in applying the provisions of sec. 56(2)(vii)(b)(ii), which is completely contrary to the provisions of the law and the facts available on the record, hence the impugned finding that the assessment order passed u/s 143(3) 21.12.2017 was erroneous and prejudicial to the interest of the revenue to the extent of short assessment of Rs. 16,42,994/-, deserves to be completely quashed and set-aside.

3.2 The Id. Pr. CIT 2, JAIPUR further erred in law as well on the facts of the case in denying the benefit of the First Proviso to Sec.56(2)(vii)(b)(ii) and completely ignoring the facts already available on record that there was a difference between the date of agreement and the date of the registration of the property. Therefore, the stamp duty valuation must have been computed w.r.t the former date only. Hence the appellant kindly be declared as entitled to the benefit of the said Proviso and the higher amount of the capital gain computed by the Pr. CIT 2 , JAIPUR of 16,42,994/- deserves to be deleted.

4. The appellant prays your honor indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing.”

To read the full judgment, find the enclosed copy

FAQ :

The appeal concerns whether the difference between the stamp duty value of a property and the purchase consideration paid should be added to the assessee's income under other sources.

Section 56(2)(vii)(b)(ii) of the Income Tax Act, which deals with the taxation of property received for inadequate consideration, is central to this dispute.

The assessee argued that the AO had applied their mind to the issue and that the Commissioner's (Pr. CIT) invocation of Section 263 was based on a 'change of opinion', which is not permissible.

The assessee claimed the benefit of the First Proviso to Section 56(2)(vii)(b)(ii), arguing that the stamp duty valuation should be calculated based on the date of the agreement to sell, not the date of registration.