ORDER

PER: VIJAY PAL RAO, J.M.

This appeal by the assessee is directed against the order dated 24/08/2018 of the ld. CIT(A), Ajmer for the A.Y. 2015-16. The assessee has raised following grounds:

“Under the facts and circumstances of the case, the ld. CIT(A) has erred in:

1. Confirming the addition of Rs. 15,39,496/- U/s 56(2)(b) of Income Tax Act, 1961 as inadequate consideration.

2. Any other matter with the prior permission of chair.”

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 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 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 relev