IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “A” BENCH : MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER Assessment Year : 2018-19 Ali Hasnain Rafique Cassum, Income Tax Officer-17(1)(1), 74-B, Peddar Road, Kautilya Bhavan, Dr. Gopalrao Deshmukh Marg, vs. Mumbai Cumballa Hills, S.O.

Mumbai PAN : ADBPC5032E (Appellant) (Respondent)

Assessee by : Shri Dharan Gandhi Revenue by : Shri Umesh Chandra Sinha, Sr. DR Date of Hearing : 27-02-2025 Date of Pronouncement : 27-02-2025

ORDER

PER B.R. BASKARAN, A.M :

The assessee has filed this appeal challenging the order dt.13-11-2024 passed by the Ld. Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [„Ld.CIT(A)‟] and it relates to AY. 2018-19. The only issue urged in this appeal is related to the addition of Rs.78.69 lakhs made by the AO u/s56(2)(x) of the Income Tax Act, 1961 („the Act‟).

2. The facts relating to the case are stated in brief. The AO took up the return of income filed by the assessee for scrutiny in order to verify the investment made by the assessee in the immoveable properties. It was noticed that the assessee and his brothers have purchased four shops in a building, named, „Krishna Tower‟ for a consideration of Rs.18,22,800/-. It was noticed that the value determined by the stamp authorities for the above said four shops was Rs. 2,54,30,000/-. Hence, there was a difference of Rs.2,36,07,200/- between stamp duty value and actual consideration of the four shops.

2.1. When questioned about the same, the assessee submitted that the property was initially booked by his grand parents in the year 1995 by making an initial payment of Rs.7.00 lakhs to the builder. Thereafter another sum of two lakhs was paid in the year 1997. However, the registration of the properties did not take place because of some dispute with the builder. After the death of the grand parents, the property was transferred to the name of the three grand sons including the assessee. Finally after resolving the dispute, the sale deed was executed on 30-01- 2018 and at that point of time, the stamp duty value was different. Accordingly, it was submitted that no addition u/s 56(2)(x) should be made.

2.2. The AO did not agree with the contentions of the assessee. He took the view that the difference between stamp duty value and actual sale consideration is assessable to tax u/s. 56(2)(x) of the Act. Since the assessee herein was having 1/3^rd share in the properties, the AO assessed 1/3^rd of the difference amount, which worked out to Rs.78,69,067/- as income of the assessee u/s. 56(2)(x) of the Act. The Ld.CIT(A) also confirmed the same. Hence, the assessee has filed this appeal.

3. We heard the parties and perused the record. The undisputed fact would remain that the property was purchased by the grand parents of the assessee in the year 1995. The assessee has furnished copy of allotment letter in pgs. 2 to 4 of the Paper Book. We also notice from the copy of receipt given by the builder, which is placed at page No.5 of paper book, for having received Rs. 7 lakhs by way of cheque No. 135269, dt. 05-05-1995 drawn on Bank of India. Thus, we notice that the impugned property was booked in the year 1995 by paying part consideration by way of cheque. Accordingly, as per the facts of the present case, we are of the view that the first &second proviso to section 56(2)(x) of the Act shall apply. For the sake of convenience, we extract below the provisions of sec.56(2)(x) of the Act and we have highlighted the first and second said provisos.

“56. (1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head "Income from other sources", if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E.

(2) In particular, and without prejudice to the generality of the provisions of sub- section (1), the following incomes, shall be charge