SHRI HARISH KUMAR JASORIA, ALWAR V. PR.CIT, , ALWAR

ITA 1194/JPR/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6322 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 16-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Revision of order; Opportunity of being heard; Cost of acquisition; Assessment record
• Section: 263; 63; 143(3); 50C; 13; 119

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1194/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2015-16 HARISH KUMAR JASORIA ATTEWALI GALLI, KEDAL GUNJ HOPE CIRCUS, ALWAR CUKE VS. PR. COMMISSIONER OF INCOME TAX, ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABAPJ0268L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. MANISH AGARWAL (FCA) JKTLO DH VKSJ LS @ REVENUE BY : SH. B. K. GUPTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/11/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/01/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. PR. CIT, ALWAR DATED 19.08.2019 WHEREIN THE ASSESSEE HA S TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. PR. COMMISSIONER OF INCOME TAX (PCIT), ALWA R HAS ERRED IN INVOKING PROVISIONS U/S 263 OF THE ACT, ON THE ISSU E WHICH WAS SPECIFICALLY VERIFIED AND DECIDED BY LD. AO. APPELL ANT PRAYS INVOKING PROVISIONS OF SEC 263 THUS DESERVES TO BE HELD BAD IN LAW AND VOID AB INITIO. ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 2 2. ON FACTS AND CIRCUMSTANCES OF THE CASE LD. PCIT HAS GROSSLY ERRED IN INVOKING PROVISIONS OF SEC 263 OF THE ACT ARBITRARILY, FOR THE PURPOSE OF CONSIDERING THE DIFFERENCE BETWEEN STAMP VALUE AND THE ACTUAL CONSIDERATION PAID BY THE ASSESSEE, AS INCOM E OF THE ASSESSEE UNDER SECTION 56(1)(VII)(B)(II) OF THE ACT, WITHOUT APPRECIATING THE FACT, THAT THE ASSESSEE HAD ENTERED INTO 'AGREEMENT TO SA LE' FOR THE PURCHASE OF SAID PLOTS OF LAND IN FY 2013-14 AND HA D ALSO PAID THE ENTIRE PURCHASE COST IN FY 2013-14 THROUGH PAYEE'S A/C CHEQUE. APPELLANT PRAYS THAT AS PER PROVISO TO SEC 56(1)(VI I)(B)(II), IN SUCH CASES THE STAMP VALUE APPLICABLE WOULD BE THE VALUE AS ON THE DATE ON WHICH `AGREEMENT TO SALE' WAS EXECUTED AND NOT T HE DATE ON WHICH THE DEED WAS REGISTERED. THEREFORE, INVOKING SEC 263 WITHOUT APPRECIATING THESE FACTS AND WITHOUT CARRYING OUT A NY VERIFICATION TO POINT THAT STAMP VALUE AS ON THE DATE OF AGREEMENT TO SELL WAS MORE THAN THE PURCHASE COST PAID AND THEREBY TREATING TH E ASSESSMENT ORDER AS ERRONEOUS & PREJUDICIAL TO THE INTEREST OF REVENUE, DESERVES TO BE HELD BAD IN LAW AND THUS MAY BE QUASHED. 2. THE LD. AR SUBMITTED THAT ASSESSEE IS AN INDIVID UAL AND FOR THE YEAR UNDER APPEAL HAS FILED HIS RETURN OF INCOME DECLARI NG TOTAL INCOME AT RS. 10,02,280/-. THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS UNDER LIMITED SCRUTINY AND ONE OF THE REASONS WAS T O EXAMINE THE ISSUE OF PURCHASES OF PROPERTY BY THE ASSESSEE DURING THE YE AR UNDER APPEAL. VARIOUS QUERY LETTERS / SHOW CAUSE NOTICE WERE ISSU ED BY THE LD. AO FROM TIME TO TIME AND AFTER DUE ENQUIRIES AND VERIFICATI ONS INTO THE MATTER AND ALSO AFTER CONSIDERING THE PROVISIONS OF ACT, THE A SSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT VIDE DATED 26.12.20 17 AT TOTAL INCOME OF RS. 13,80,060/- BY MAKING CERTAIN ADDITIONS/ DISALL OWANCE INCLUDING THE EXCESS COST CLAIMED IN PURCHASE OF PROPERTY. AGAINS T THIS ORDER, ASSESSEE ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 3 PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO VIDE ORDER DT. 26.9.2018 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE HOWEVER, THE ADDITION TOWARDS THE EXCESS COST CLAIM IN PURCHASES OF PROPERTY IS S USTAINED. THEREAFTER, VIDE NOTICE DT. 05.04.2019 LD. CIT (ADMN.) INVOKED THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT, 1961 FOR THE REA SON THAT DURING THE YEAR UNDER APPEAL ASSESSEE HAS PURCHASED PROPERTY G -99 AND G-100, MIA ALWAR FOR RS. 29.00 LACS EACH WHEREAS THE STAMP DUT Y VALUE OF THE SAME IS RS. 36,01,500/-AND RS. 36,52,750/- RESPECTIVELY AND THEREFORE, AO SHOULD HAVE INVOKED THE PROVISIONS OF SECTION 56(1)(VII)(B )(II) MISTAKENLY MENTIONED BY LD. CIT, CORRECT SECTION IS 56(2)(VII) B(II) AND SHOULD MADE THE ADDITION OF RS. 14,54,250/- BEING THE DIFFERENC E BETWEEN THE DLC VALUE AND ACTUAL PURCHASES CONSIDERATION. ACCORDING LY THE LD. CIT (ADM.) HAS HELD THE ASSESSMENT ORDER AS ERRONEOUS AND PREJ UDICIAL TO THE INTEREST OF REVENUE. AGGRIEVED BY THE AFORESAID REVISION ORD ER OF LD. CIT (ADMN.), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFOR E THIS HONBLE TRIBUNAL. 3. REGARDING GROUND NOS. 1 AND 2, IT WAS SUBMITTED THAT BOTH THESE GROUNDS OF APPEAL RELATE TO THE ACTION OF LD. CIT(A DMN.) IN PASSING THE IMPUGNED REVISION ORDER U/S 263 OF THE ACT ARBITRAR ILY AND WITHOUT APPRECIATING THE FACT THAT THE LD. AO HAS ALREADY M ADE ALL THE NECESSARY ENQUIRY IN THIS REGARD AND AFTER DUE APPLICATION OF MIND ON THE APPLICABLE PROVISIONS OF LAW, HAS NOT MADE ANY ADDITION ON THI S SCORE. BOTH THE GROUNDS OF APPEAL, BEING INTERRELATED ARE DEALT WIT H TOGETHER FOR THE SAKE OF CONVENIENCE. 4. TO BEGIN WITH, ATTENTION OF THE BENCH WAS INVITE D TO THE FACT THAT CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSME NT UNDER CASS FOR ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 4 FOLLOWING REASONS AS HAS BEEN NOTED BY LD. CIT (ADM N) ON PAGE 1 OF ORDER APPEALED AGAINST: (I) SALES TURNOVER MISMATCH (II) PURCHASE OF PROPERTY AND (III) MISMATCH IN INCOME/CAPITAL GAIN ON SALE OF LAND OR BUILDING 5. IT WOULD NOT BE OUT OF PLACE TO MENTION HERE THA T DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NO DISCREPANCY WHATSOEVE R WAS FOUND SO FAR AS REASONS AT SERIAL NO. (1) AND (III) ARE CONCERNE D. ACCORDINGLY, FOCUS OF ENQUIRIES MADE DURING ASSESSMENT WAS ON SERIAL NO. (II), I.E. PURCHASE OF PROPERTY. DURING THE COURSE OF ASSESSMENT PROCEEDIN G LD. AO AFTER OBTAINING ALL THE INFORMATION WITH RESPECT TO THE P URCHASES OF BOTH THE INDUSTRIAL PLOTS HAS MADE NECESSARY ENQUIRES AND RE ACHED TO THE CONCLUSION THAT ASSESSEE HAS CLAIMED CERTAIN EXPENS ES TOWARDS THE COST WHICH HE FAILED TO JUSTIFY AND ACCORDING SAME WERE DISALLOWED. ASSESSEE PREFERRED APPEAL AGAINST SUCH ORDER BEFORE THE LD. CIT(A) WHO HAS PARTLY ALLOWED THE GROUNDS TAKEN BY THE ASSESSEE ON THIS I SSUE VIDE ORDER DT. 26.9.2018 AFTER THOROUGH ANALYSIS OF THE FACTS. AFT ER THE ORDER OF LD. CIT(A), THE CIT(ADM.) HAS INVOKED THE PROVISIONS OF SECTION 263 AND ISSUED THE FIRST NOTICE ON 5.4.2019 ALLEGING THE AS SESSMENT ORDER AS ERRONEOUS. 6. IN THIS REGARD, ATTENTION IS INVITED TO THE PROV ISION OF EXPLANATION (C) TO SUB-SECTION OF SECTION 263 WHICH READS AS UNDER: REVISION OF ORDERS PREJUDICIAL TO REVENUE . 263. (1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE [ASSESSING] OFFICER IS ERRONE OUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTE R MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSA RY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 5 INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSES SMENT, OR CANCELING THE ASSESSMENT AND DIRECTING A FRESH ASSE SSMENT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN ORDER PASSED [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT CO MMISSIONER [OR DEPUTY COMMISSIONER] OR THE INCOME-TAX OFFICER ON THE BASIS OF THE DIRECTIONS ISSUED BY THE [JOINT] COMMI SSIONER UNDER SECTION 144A ; (II) AN ORDER MADE BY THE [JOINT] COMMISSIONER IN E XERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE CHIEF COMM ISSIONER OR DIRECTOR GENERAL OR COMMISSIONER AUTHORISED BY T HE BOARD IN THIS BEHALF UNDER SECTION 120 ; (B) RECORD [SHALL INCLUDE AND SHALL BE DEEMED ALW AYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UN DER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE COMMISS IONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER O F ANY APPEAL [FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988], THE POWERS OF THE COMMISSIONER UNDER THIS SUB-SECTI ON SHALL EXTEND [AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED ] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL.] EXPLANATION 2 .. (2) .. (3) .. EXPLANATION . 7. IN VIEW OF ABOVE PROVISIONS CONTAINED IN SECTION 263 OF THE IT ACT, IT IS APPARENT THAT THE PRINCIPAL COMMISSIONER OR COMM ISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE IT ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED BY THE ASSESSING OF FICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE RE VENUE AND HE MAY PASS AN ORDER REVISING THE SAME. ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 6 8. FURTHER, FROM THE PERUSAL OF EXPLANATION (C) TO SUB-SECTION (1) OF SECTION 263 IT IS EVIDENT THAT IT CLEARLY DEBARS TH E CIT TO VISIT THE ISSUES WHICH HAD BEEN CONSIDERED AND DECIDED IN APPEAL. SI NCE THE ISSUE REGARDING EXACT COST OF PURCHASE OF PROPERTY HAS BE EN THE SUBJECT MATTER OF APPEAL AS AFTER EXAMINING THE ISSUE THE LD. AO H AS ALTERED THE SAME AND AFTER GOING THROUGH THE FACTS ON RECORD REGARDING P URCHASE VALUE OF PROPERTY AND SUBMISSION OF ASSESSEE AND DULY CONSID ERING VARIOUS ISSUE RELATED TO PURCHASE OF PROPERTY, THE LD. CIT(A) AL LOWED PART RELIEF TO THE ASSESSEE. THUS, THE SUBJECT MATTER OF THE ORDER U/S 263 BEING ON PURCHASE OF PROPERTY, SAME ALREADY STOOD MERGED IN THE ORDER OF CIT(A) AND THEREFORE, THE ORDER PASSED BY THE CIT(ADMN.) U/S 2 63 IS WITHOUT THE AUTHORITY OF LAW AND DESERVES TO BE HELD VOID-AB-IN ITIO. 9. PROVISIONS EMBEDDED IN EXPLANATION (C) TO SUB SE CTION (1) OF SECTION 263 FIND SUPPORT FORM DOCTRINE OF MERGER, ACCORDING TO WHICH, WHERE AN APPEAL OR REVISION IS PROVIDED AGAINST AN ORDER PAS SED BY A COURT, TRIBUNAL OR ANY OTHER AUTHORITY BEFORE SUPERIOR FORUM AND SU CH SUPERIOR FORUM MODIFIES, REVERSES OR AFFIRMS THE DECISION PUT IN I SSUE BEFORE IT, THE DECISION BY THE SUBORDINATE FORUM MERGES IN THE DEC ISION BY THE SUPERIOR FORUM AND IT IS THE LATTER WHICH SUBSISTS, REMAINS OPERATIVE AND IN CAPABLE OF ENFORCEMENT IN THE EYE OF LAW. LOGIC UNDERLYING THE DOCTRINE OF MERGER IS THAT THERE CANNOT BE MORE THAN ONE DECREE OR OPE RATIVE ORDERS GOVERNING THE SAME SUBJECT MATTER AT A GIVEN POINT OF TIME. 10. IN PRESENT CASE, ISSUE FOR CONSIDERATION IS WHE THER, WHEN AN ORDER OF THE ASSESSING OFFICER WAS SUBJECTED TO APPEAL WH ICH HAD CONCLUDED WITH THE ORDER PASSED BY THE COMMISSIONER (APPEALS) FOR A SUBJECT-MATTER WHICH IN THE PRESENT CASE IS VALUE OF PURCHASE OF P ROPERTY, WILL IT BE STILL OPEN AND AVAILABLE FOR THE COMMISSIONER TO EXERCISE HIS REVISIONAL ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 7 JURISDICTION UNDER SECTION 263 TO REVISE THE ORDER OF THE ASSESSING OFFICER ON THE SAME SUBJECT-MATTER. ON THIS ISSUE, HONBLE GUWAHATI HIGH COURT IN PCIT V. OIL INDIA REPORTED IN 103 TAXMANN.COM 339 OBSERVED THAT, AS PROVIDED UNDER CLAUSE (C) TO EXPLANATION 1 OF SECTI ON 263(1), THE COMMISSIONER CAN INVOKE HIS POWERS CONFERRED UNDER SECTION 263 ONLY IN RESPECT OF: - ERRONEOUS PORTION OF THE ORDER OF THE ASSESSING OF FICER WHICH IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND; - SUCH PORTION OF THE ORDER NOT BEING A PART OF THE C ONSIDERATION IN ANY APPEAL FILED BEFORE THE COMMISSIONER (APPEALS). 11. THEREFORE, IN A SCENARIO WHERE THE COMMISSIONER (APPEALS) PASSES AN ORDER, THE ORDER OF THE ASSESSING OFFICER WITH R ESPECT TO THE SAID SUBJECT MATTER MERGES WITH THE ORDER OF THE COMMISS IONER (APPEALS) AND THEREFORE, COMMISSIONER CANNOT EXERCISE JURISDICTIO N UNDER SECTION 263 TO REVISE THE ORDER OF THE ASSESSING OFFICER ON THAT S UBJECT MATTER. 12. IN THIS REGARD RELIANCE IS PLACED ON THE FOLLOW ING CASE LAWS: CIT VS. SHRI ARBUDA MILLS LTD. 231 ITR 50 (SC) CIT VS. HINDUSTAN AERONAUTICS LTD. 157 ITR 315 (KAR .) CIT VS. SARAF BANDHU PVT. LTD. (BOM.) 216 ITR 833 OIL INDIA LTD. VS. CIT 138 ITR 836 (CAL.) CIT VS. RAJPUT 164 ITR 197 (M.P.) M/S DWARKA GEMS VS. CIT (ITAT, JPR) ITA NO. 133/JP/ 09 ORDERS DT. 30.04.2010 13. WITHOUT PREJUDICE TO ABOVE, ON MERITS OF THE ISSUE, DETAILS OF PROPERTIES PURCHASED ARE TABULATED FOR THE SAKE OF CONVENIENCE: SL. NO. DESCRIPTION OF PROPERTY DATE OF AGREEMENT TO SALE DATE OF REGISTRATION DETAILS OF SALE CONSIDERATION APB ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 8 1. G 99, AGRO FOOD PARK, M. I.A. ALWAR 22.05.2013 28.04.2014 RS.50,000/- CH DTD. 06.05.2013 RS.2,50,000/-. CH DTD. 25.05.13 RS. 1,00,000/- CH DTD. 01.06.13 RS.6,00,000/- CH DTD. 11.07.13 RS. 7,50,000/- CH DTD. 06.08.13 RS.7,50,000/- CH DTD. 07.08.13 RS.1,00,000/- CH DTD. 07.10.13 37 2. G 100. AGRO FOOD PARK, M.I.A. ALWAR 09.09.2013 28.04.2014 RS. 50,000/- CH DTD. 6.05.2013 RS.2,50,000/- CH DTD. 25.05.13 RS. 24,00,000/- CH DTD 10.09.13 RS. 2 LAC CASH 14 14. WITH THIS BACKGROUND, IT IS SUBMITTED THAT DURI NG THE COURSE OF ASSESSMENT, LD.AO SOUGHT COMPLETE DOCUMENTS/INFORMA TION OF ABOVE PROPERTIES PURCHASED, WHICH COMPRISED AGREEMENTS TO SELL AS WELL AS REGISTERED SALE DEEDS AND DOCUMENTARY EVIDENCES IN RESPECT TO EXPENSES CLAIMED (OVER AND ABOVE SALE CONSIDERATION MENTIONE D IN SALE DEED) FOR BOTH PROPERTIES PURCHASED. IN FACT, AT PAGE 2 OF AS SESSMENT ORDER, LD. AO HAS OBSERVED BOTH THE PROPERTIES WERE REGISTERED AT SUB REGISTRAR II ON 28.04.2014 AT RS. 29 LACS EACH. DURING THE COURSE O F HEARING, ON ENQUIRY, IT WAS EXPLAINED TO LD.AO THAT NO ADDITION WAS CALL ED FOR IN RESPECT OF DIFFERENCE BETWEEN DLC VALUE OF PROPERTIES PURCHASE D AND SALE CONSIDERATION THEREOF AS THE DATE OF AGREEMENT AND DATE OF REGISTRATION WAS DIFFERENT AND ASSESSEE HAD RECEIVED PART OF SAL E CONSIDERATION THROUGH ACCOUNT PAYEE CHEQUE PRIOR TO THE DATE OF AGREEMENT TO SALE OF PROPERTIES ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 9 FOR WHICH THE NECESSARY DETAILS OF PAYMENTS MADE WE RE ALSO SUBMITTED IN THE CHARTS. IT WAS CLAIMED THAT SINCE THE PAYMENTS HAVE BEEN MADE THROUGH PAYEES ACCOUNT CHEQUE IN RESPECT TO BOTH TH E PROPERTIES IN ACCORDANCE WITH THE AGREEMENT TO SALE WHICH WERE EX ECUTED PRIOR TO 1.4.2014 THUS IT IS OUTSIDE THE PURVIEW OF PROVISIO NS OF SECTION 56(2)(VII)(B)(II), BY VIRTUE OF PROVISO TO THAT SEC TION. AFTER CONSIDERING SUBMISSION AND EVIDENCES FILED BY THE ASSESSEE, LD. AO HAS NOT MADE ANY ADDITION ON THIS SCORE AND EVENTUALLY MADE ADDITION IN RESPECT OF CERTAIN EXPENSES INCURRED IN CONNECTION WITH PURCHASE OF PR OPERTY, WHICH ACTION OF LD. AO WAS PURELY BASED ON HIS WISDOM AND JUDGEM ENT AND IN ACCORDANCE WITH THE SPECIFIC PROVISIONS OF LAW EXIS TED IN THIS REGARD. 15. AT THIS JUNCTURE, PROVISIONS OF SECTION 56(2)(V II)(B)(II) ARE REPRODUCED FOR THE SAKE OF CONVENIENCE: 56 (2) IN PARTICULAR, AND WITHOUT PREJUDICE TO THE GENERALITY OF THE PROVISIONS OF SUB-SECTION (1), THE FOLLOWING INCOME S, SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD INCOME FRO M OTHER SOURCES, NAMELY : (I).. (II).. .. .. [( VII ) WHERE AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY R ECEIVES, IN ANY PREVIOUS YEAR, FROM ANY PERSON OR PERSONS ON OR AFT ER THE 1ST DAY OF OCTOBER, 2009, ( A ) ANY SUM OF MONEY, WITHOUT CONSIDERATION, THE AGGR EGATE VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE W HOLE OF THE AGGREGATE VALUE OF SUCH SUM; 8[ ( B ) ANY IMMOVABLE PROPERTY, ( I ) WITHOUT CONSIDERATION, THE STAMP DUTY VALUE OF WHIC H EXCEEDS FIFTY THOUSAND RUPEES, THE STAMP DUTY VALUE OF SUCH PROPERTY; ( II ) FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THOUSA ND ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 10 RUPEES, THE STAMP DUTY VALUE OF SUCH PROPERTY AS EX CEEDS SUCH CONSIDERATION: PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMO UNT OF CONSIDERATION FOR THE TRANSFER OF IMMOVABLE PROPERT Y AND THE DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUE ON THE DATE OF THE AGREEMENT MAY BE TAKEN FOR THE PURPOSES OF THIS SUB-CLAUSE: PROVIDED FURTHER THAT THE SAID PROVISO SHALL APPLY ONLY IN A CASE WH ERE THE AMOUNT OF CONSIDERATION REFERRED TO THEREIN, OR A PART THEREOF, HAS BEEN PAID BY ANY MODE OTHER THAN CASH ON OR BEF ORE THE DATE OF THE AGREEMENT FOR THE TRANSFER OF SUCH IMMOVABLE PR OPERTY; ] [8 . SUBSTITUTED BY THE FINANCE ACT, 2013, W.E.F. 1-4-2 014. PRIOR TO ITS SUBSTITUTION, SUB-CLAUSE ( B ), AS SUBSTITUTED BY THE FINANCE ACT, 2010, W.R.E.F. 1-10-2009, READ AS UNDER: ( B ) ANY IMMOVABLE PROPERTY, WITHOUT CONSIDERATION, TH E STAMP DUTY VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE S TAMP DUTY VALUE OF SUCH PROPERTY;] 16. FROM PERUSAL OF ABOVE, IT IS EVIDENT THAT DEEMI NG PROVISIONS OF SECTION 56(2)(VII) REGARDING TAXABILITY OF TRANSFER OF IMMOVABLE PROPERTY WITHOUT CONSIDERATION WERE BROUGHT ON THE STATUE BO OK, BY FINANCE (NO.2)ACT, 2009 W.E.F. 01.10.2009. SUBSEQUENTLY, CL AUSE (B) OF THE SECTION WAS AMENDED BY FINANCE ACT, 2013, W.E.F. 01.04.2014 , WHICH PROVIDED FOR TAXABILITY OF EVEN INADEQUATE CONSIDERATION IN TRAN SFER OF PROPERTY. 17. SO FAR AS FACTS OF THE PRESENT CASE ARE CONCERN ED, PART OF THE SALE CONSIDERATION WAS PAID THROUGH BANKING CHANNELS BEF ORE THE DATE OF AGREEMENT (AS IS EVIDENT FROM TABLE AT PAGE 4 OF TH IS SUBMISSION) AND THUS ASSESSEE WAS OUTSIDE THE PURVIEW OF DEEMING PROVISI ONS OF SECTION 56(2)(VII) BY VIRTUE OF PROVISO THEREOF. ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 11 18. IT IS WORTHWHILE TO MENTION HERE THAT LD. CIT(A DMN.) IN PARA 2 AT PAGE 3 OF THE REVISION ORDER MERELY OBSERVED THAT IT IS OBSERVED BY ME THAT THE PROVISIONS OF SECTION 56(1)(VII)(B) OF THE ACT, WERE INTRODUCED BY THE FINANCE BILL 2013, W.E.F. 01.04.2014 RELEVANT T O A.Y. 2015- 16(INCORRECTLY MENTIONED BY LD.CIT (A), CORRECT A.Y . IS A.Y.2014-15) IN REGARDING VALUE TAKEN U/S 50C OF THE ACT, OF THE PU RCHASE OF IMMOVABLE PROPERTY WHICH ARE APPLICABLE ON THE CASE OF THE AS SESSEE, AS THE ASSESSMENT WAS RELATED TO A.Y. 2015-16. 19. IT IS THUS APPARENT THAT LD. CIT HAS RELIED UPO N BARE SECTION AND HAS NOT EVEN LOOKED INTO PROVISO THEREOF, WHICH SPARES ASSESSEE OF THE IMPLICATION OF DEEMED PROVISIONS. LD. CIT(ADMN.) T HOUGH FORMED OPINION ON THE BASIS OF AMENDED SECTION, HOWEVER GROSSLY IG NORED THE PROVISO THEREOF, WHICH SPECIFICALLY PROVIDES THAT WHEREVER DATE OF AGREEMENT FIXING THE CONSIDERATION FOR TRANSFER OF PROPERTY AND DATE OF REGISTRATION ARE DIFFERENT, STAMP DUTY VALUE ON THE DATE OF AGREEMEN T NEED TO BE CONSIDERED PROVIDED FULL/PART OF THE SALE CONSIDERA TION IS PAID ON OR BEFORE DATE OF AGREEMENT BY A MODE OTHER THAN CASH. YOUR HONOURS WOULD APPRECIATE THAT ONCE, DEEMING PROVISIONS ARE NOT AP PLICABLE TO THE CASE OF ASSESSEE, THERE IS NO QUESTION OF ORDER PASSED BY L D. AO BEING ERRONEOUS AND ACTION OF LD. CIT(ADM.) BECOMES ABSOLUTELY AGAI NST THE PROVISIONS OF THE ACT. 20. IT IS SUBMITTED THAT LD. CIT(ADM.) HAS FRAMED A N OPINION BY COMPLETELY IGNORING THE ABOVE FACTUAL AS WELL AS LE GAL POSITION AND WRONGLY OBSERVED THAT THE LD.AO HAS NOT MADE PROPER INVESTI GATION AND VERIFICATION AND HAS PASSED THE ORDER ON MISTAKEN VIEW OF LAW/ER RONEOUS APPLICATION OF PROVISIONS OF THE ACT. IN THIS CONNECTION, IT IS SUBMITTED THAT COMPLETE EVIDENCES PERTAINING TO THE PURCHASES OF PROPERTIES WERE FILED DURING THE ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 12 COURSE OF ASSESSMENT PROCEEDINGS, WHICH IS EVIDENT FROM ASSESSMENT ORDER ITSELF. IT IS PERTINENT TO SUBMIT BEFORE YOUR HONOURS THAT LD. CIT(ADMN.) HAS FAILED TO REBUT ANY OF THE EVIDENCES FILED BY ASSESSEE BEFORE LD. AO AND ALSO COULD NOT REBUT THE EXPLANAT IONS AND SUBMISSIONS MADE BEFORE HIM IN PROCEEDINGS U/S 263 NOR HAS PROP ERLY AND COMPLETELY APPLIED THE PROVISIONS OF SECTION 56(2)(VII)(B)(II) OF THE ACT. 21. IT WAS SUBMITTED THAT THE EXTENT OF IN-DEPTHNES S OF ENQUIRIES DIFFER FROM PERSONS PERCEPTION AND THERE CANNOT BE A FIXE D CRITERIA TO DECIDE WHETHER THE ENQUIRIES MADE WERE ADEQUATE OR NOT. 22. IN VIEW OF THE ABOVE FACTUAL BACKGROUND OF THE CASE, IT IS HUMBLY SUBMITTED THAT ESSENTIAL ELEMENTS NECESSITATED FOR INVOKING SECTION 263 ARE NOT FULFILLED. THE BASIC INGREDIENTS TO BE FULF ILLED BEFORE INVOKING SECTION 263 HAVE BEEN EXPLAINED BY THE HONBLE SUPR EME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT REPORTE D IN 243 ITR 83 (SC) IN THE FOLLOWING WORDS: A BARE READING OF SECTION 263 OF THE INCOME TAX AC T, 1961, MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTU UNDER IT, IS THAT THE ORDER O F THE INCOME TAX OFFICER IS ERRONEOUS IS SO FAR AS IT IS PREJUDI CIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIE D OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS ; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT IF THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. 23. IN FACT, LD. CIT(ADMN.) HAS RELIED UPON THE DEC ISION OF APEX COURT ON THE OBSERVATION THAT AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THIS REGARD, IT IS SUBMITTED THAT LD .AO HAS DULY APPLIED THE ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 13 PROVISIONS OF LAW AND LD. CIT (ADMN.) HAS NOT PROVE D THE SAME OTHERWISE AND HAS RATHER ISSUED DIRECTIONS FOR REVISION IN A MECHANICAL MANNER. SIMILARLY OTHER CASE LAWS RELIED UPON BY LD.CIT(ADM N.) ARE ALSO NOT APPLICABLE TO FACTS OF THE CASE. 24. AT THIS JUNCTURE, KIND ATTENTION OF HONBLE BEN CH IS INVITED TO EXPLANATION 2 INSERTED IN SECTION 263 BY FINANCE AC T, 2015, W.E.F. 01.06.2015, WHICH HAS WIDENED THE POWERS OF CIT TO REVISE THE ALREADY COMPLETED ASSESSMENT AND HAS BEEN TAKEN SHELTER BY THE LD.CIT (ADMN.) IN THE PRESENT CASE ALSO, WHICH READS AS UNDER: EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, IT IS HEREBY DECL ARED THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE D EEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSION ER, ( A ) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR V ERIFICATION WHICH SHOULD HAVE BEEN MADE; ( B ) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT I NQUIRING INTO THE CLAIM; ( C ) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH AN Y ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119 ; OR ( D ) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WITH ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY T HE JURISDICTIONAL HIGH COURT OR SUPREME COURT IN THE CASE OF THE ASSE SSEE OR ANY OTHER PERSON. ] 25. A PERUSAL OF ABOVE CLARIFIES THAT ORDER PASSED BY ASSESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ONLY IF AO HAS PASSED SUCH ORDER WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE;. WHEREAS IN THE INSTANT CASE, LD. AO HAS MADE ALL THE ENQUIRIES NECESSARY FOR COM PLETION OF ASSESSMENT. 26. IT IS ALSO WORTHWHILE TO NOTE HERE THAT THE PHR ASE WHICH SHOULD HAVE BEEN MADE HERE IN NO WAY MEANS THAT ENQUIRIES SHOULD HAVE BE EN MADE IN MANNER AS DESIRED BY CIT, RATHER IT MEANS T HAT BEFORE HOLDING AN ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 14 ORDER TO BE ERRONEOUS, CIT SHOULD HAVE CONDUCTED NE CESSARY ENQUIRIES OR VERIFICATION WHICH BRINGS ON RECORD CERTAIN MATERIA L IN ORDER TO SHOW THAT THE FINDING GIVEN BY THE ASSESSING OFFICER IS ERRON EOUS. IN THIS REGARD RELIANCE IS PLACED ON THE FOLLOWING DECISIONS: SHRI NARAYAN TATU RANE VS ITO ITA NO.2690 & 2691/MU M/16 DATED 06.05.2016 SANJEEV KR. KHEMKA VS PR. CIT (KOLKATTA ITAT) 27. IT WAS FURTHER SUBMITTED THAT, THE HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT VS. GABRIAL INDIA LTD., REPORTED IN 203 ITR 108, HAS HELD THAT, CIT CANNOT REVISE ORDER MERELY BECAUSE HE DISAGREE S WITH THE CONCLUSION ARRIVED AT BY THE ITO. FURTHER, IN THE CASE OF CIT VS. SUNBEAM AUTO LTD., REPORTED IN 227 CTR 133, THE HONBLE DELHI HIGH COU RT DREW A DISTINCTION BETWEEN LACK OF INQUIRY AND INADEQUATE ENQUIRY AND HELD THAT, IN THE CASE OF INADEQUATE ENQUIRY, PROVISIONS UNDER SECTIO N 263 CANNOT BE INVOKED. IT MAY HOWEVER, BE NOTED THAT THE INSTANC E CASE IS NEITHER THE CASE OF INADEQUATE ENQUIRY NOR LACK OF ENQUIRY DURI NG ASSESSMENT PROCEEDINGS AS IT CAN BE SEEN THAT DUE, NECESSARY A ND MOST PERTINENT ENQUIRIES TO ALL THE ISSUES EMERGING FROM THE RETUR N FILED BY THE ASSESSEE WERE CONDUCTED BY THE LD. AO. THEREFORE, IN VIEW OF SUCH LEGAL POSITION, NO ACTION U/S 263 COULD HAVE BEEN TAKEN. 28. IT IS THUS SUBMITTED THAT FOR THE SAKE OF CLARI FICATION AND AT THE COST OF REPETITION IT IS SUBMITTED THAT TWIN CONDITIONS AS LAID DOWN U/S 263 I.E. ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE HAVE TO BE CUMULATIVELY SATISFIED AND IN THE ABSENCE OF ONE OF THE CONDITIONS, (I.E. ORDER PASSED BY LD.AO IS NOT ERRONEOUS) NOT BEING A TTRACTED THE OTHER WOULD BECOME NONEST FOR THE PURPOSES OF REVISION. ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 15 29. THEREFORE, IN VIEW OF THE ABOVE IT WAS SUBMITTE D THAT THE IMPUGNED ORDER OF LD. CIT(ADMN.) BE QUASHED AND HELD BAD IN LAW. 30. PER CONTRA, THE LD. CIT/DR SUBMITTED THAT THE C ASE OF THE ASSESSEE WAS SELECTED FOR LIMITED SCRUTINY ASSESSMENT AND ON E OF THE REASONS FOR SUCH SELECTION WAS PURCHASE OF PROPERTY AND ON PERU SAL OF THE ASSESSMENT RECORDS, IT CAN BE OBSERVED THAT THE ASSESSEE HAS P URCHASED TWO PROPERTIES SITUATED AT G-99 AND G-100 MIA ALWAR FRO M SH. GAURAV KHANDELWAL & SH. LOKESH KHANDELWAL FOR A CONSIDERAT ION OF RS. 29 LAKHS EACH WHEREAS THE STAMP DUTY VALUE HAS BEEN ASSESSED BY THE SUB- REGISTRAR-II, ALWAR IN RESPECT OF THESE PROPERTIES WERE RS. 36,01,500/- AND RS 36,52,750/- RESPECTIVELY. THE LD. CIT OBSERVED T HAT THE PROVISIONS OF SECTION 56(1)(VII)(B)(II) OF THE ACT WHICH WERE MAD E APPLICABLE BY THE FINANCE BILL, 2013 W.E.F 01.04.2014 RELEVANT TO TH E IMPUGNED ASSESSMENT YEAR 2015-16 HAVE NOT BEEN EXAMINED AND CONSEQUENTI ALLY INVOKED BY THE ASSESSING OFFICER IN THE INSTANT CASE. IT WAS ACCO RDINGLY SUBMITTED THAT IT IS A CLEAR CASE OF NON-APPLICATION OF RELEVANT PROV ISIONS OF LAW AS APPLICABLE IN RESPECT OF ISSUE IN HAND WHICH HAS BE EN SELECTED FOR SCRUTINY AND THEREFORE IN ABSENCE OF PROPER INQUIRY AND NON- APPLICATION OF MIND BY THE ASSESSING OFFICER, THE ASSESSMENT ORDER SO PASS ED IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE T HEREFORE, SUBMITTED THAT THE ORDER PASSED U/S 143(3) HAS BEEN RIGHTLY SET AS IDE BY THE LD. PR. CIT WITH DIRECTIONS TO PROPERLY EXAMINE THE ISSUE RELAT ING TO APPLICABILITY OF PROVISIONS OF SECTION 56(2)(VII)(B)(II) OF THE ACT AND THEREFORE, NO INTERFERENCE IS CALLED FOR IN SUCH ORDER PASSED U/S 263 OF THE ACT. 31. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THE FIRST CONTENTION WHICH HAS BEEN RAISED BY THE LD. AR IS THAT THE MATTER RELATING TO PURCHASE OF THE A FORESAID TWO INDUSTRIAL ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 16 PLOTS OF LAND HAVE BEEN DULY EXAMINED BY THE ASSESS ING OFFICER AND THEREAFTER CERTAIN EXPENSES INCURRED IN RELATION TO THESE INDUSTRIAL PLOTS HAVE BEEN DISALLOWED WHICH WAS SUBJECT MATTER OF AP PEAL BEFORE THE LD. CIT(A) WHO HAS SINCE CONSIDERED THE SAID MATTER AND HAS PASSED AN ORDER DATED 26.09.2018. IT WAS ACCORDINGLY SUBMITTED THAT THE SUBJECT MATTER OF THE IMPUGNED PROCEEDINGS U/S 263, BEING RELATED TO PURCHASE OF PROPERTY, STOOD MERGED WITH THE ORDER OF LD. CIT(A) AND THERE FORE, THE ORDER PASSED BY THE LD. PR. CIT IS WITHOUT ANY AUTHORITY OF LAW. WE ARE HOWEVER, NOT IN AGREEMENT WITH THE CONTENTION SO RAISED BY THE LD. AR. WE FIND THAT THE SUBJECT MATTER OF EXAMINATION BY THE ASSESSING OFFI CER WAS LIMITED TO THE EXPENSES WHICH HAVE BEEN INCURRED IN RELATION TO TH ESE INDUSTRIAL PLOTS HOWEVER AS FAR AS THE APPLICABILITY OF PROVISIONS O F SECTION 56(2)(VII)(B)(II) OF THE ACT IS CONCERNED, THERE IS NO MATERIAL AVAIL ABLE ON RECORD THAT THE ASSESSING OFFICER HAS CARRIED OUT ANY INQUIRY/EXAMI NATION AND SOUGHT ANY EXPLANATION FROM THE ASSESSEE. WHERE THE MATTER RE LATING TO APPLICABILITY OF PROVISIONS OF SECTION 56(2)(VII)(B)(II) OF THE A CT HAS NOT BEEN EXAMINED BY THE AO AND NOT SUBJECT MATTER OF ASSESSMENT ORDE R, THERE IS NO QUESTION OF APPLICATION OF THEORY OF MERGER WITH TH AT OF THE ORDER OF THE LD CIT(A) AS SO CONTENDED BY THE LD AR. WE THEREFORE FIND THAT IT IS A CLEAR CASE WHERE THE APPLICABILITY OF PROVISIONS OF SECTI ON 56(2)(VII)(B)(II) OF THE ACT WHICH ARE APPLICABLE FOR THE IMPUGNED ASSESSMEN T YEAR I.E. A.Y 2015- 16 HAS ESCAPED THE ATTENTION OF THE ASSESSING OFFIC ER WHICH RENDERS THE ORDER SO PASSED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 32. THE OTHER CONTENTION WHICH HAS BEEN RAISED IS R EGARDING MERIT OF APPLICABILITY OF PROVISIONS OF SECTION 56(2)(VII)(B )(II) OF THE ACT IN THE INSTANT CASE. IT HAS BEEN CONTENDED THAT BY VIRTUE OF PROVISO TO THE SAID SECTION, SINCE PAYMENTS HAVE BEEN MADE THROUGH ACCO UNT PAYEE CHEQUE ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 17 IN RESPECT OF BOTH THE PROPERTIES IN ACCORDANCE WIT H AGREEMENT TO SELL EXECUTED PRIOR TO DATE OF REGISTRATION OF SALE DEED , IT IS OUTSIDE THE PURVIEW OF PROVISIONS OF SECTION 56(2)(VII)(B)(II) OF THE A CT. IN THIS REGARD, WE REFER TO THE FIRST PROVISO TO THE SAID SECTION WHICH PROV IDES THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMOUNT OF CONSIDERATION FOR TRANSFER OF AN IMMOVABLE PROPERTY AND DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUE ON THE DATE OF THE AGREEMENT MAY BE TAKE N FOR THE PURPOSES OF THIS SUB CLAUSE. THE SECOND PROVISO FURTHER PROVIDE S THAT THE FIRST PROVISO SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONS IDERATION OR A PART THEREOF HAS BEEN PAID BY ANY MODE OTHER THAN CASH O N OR BEFORE DATE OF AGREEMENT FOR TRANSFER OF SUCH IMMOVABLE PROPERTY. WE THEREFORE FIND THAT ALL THAT PROVISO TALKS ABOUT IS THAT WHERE THERE IS AN AGREEMENT TO SELL WHICH HAS BEEN EXECUTED PRIOR TO THE DATE OF REGIST RATION, IN SUCH CASES, THE STAMP DUTY VALUE AS ON THE DATE OF AGREEMENT MA Y BE TAKEN INSTEAD OF DATE OF REGISTRATION OF THE PROPERTY PROVIDED TH AT WHOLE OF THE CONSIDERATION OR A PART THEREOF HAS BEEN PAID BY AN Y MODE OTHER THAN CASH ON OR BEFORE DATE OF AGREEMENT. THEREFORE, THE FACT THAT THE PROVISO IS APPLICABLE IN THE INSTANT CASE DOES NOT TAKE THE IMPUGNED TRANSACTIONS OF PURCHASE OF INDUSTRIAL PLOT OF LANDS OUT OF THE APPLICABILITY OF PROVISIONS OF SECTION 56(2)(VII)(B)(II) OF THE ACT AS SO CONTE NDED BY THE LD. AR. ALL THAT IT PROVIDES IS THAT IT SHIFTS THE DETERMINATIO N OF STAMP DUTY VALUE AS ON THE DATE OF AGREEMENT RATHER THAN THE DATE OF RE GISTRATION OF THE SALE DEED. THEREFORE, THE CONTENTION SO ADVANCED BY THE LD. AR CANNOT BE ACCEPTED. 33. IN LIGHT OF THE AFORESAID DISCUSSION, WE ARE TH EREFORE OF THE CONSIDERED VIEW THAT IT IS A CASE WHERE THE PROVISI ONS OF SECTION 56(2)(VII)(B)(II) OF THE ACT READ WITH PROVISO THER EOF HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER AND WHICH UNDISPU TEDLY APPLIES FOR THE ITA NO. 1194/JP/2019 HARISH KUMAR JASORIA, ALWAR VS. PR. CIT, ALWAR 18 IMPUGNED ASSESSMENT YEAR. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE EXERCISE OF JUSTIFICATION BY THE LD. PR. CIT U/S 26 3 OF THE ACT. 34. BEFORE PARTING, WE MAY ADD THAT WE HAVE GONE TH ROUGH THE VARIOUS DECISIONS RELIED UPON BY THE LD AR AND FIND THAT TH E SAME HAVE BEEN RENDERED IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE RELEVANT CASE AND THE SAME ARE DISTINGUISHABLE, HENCE, DOES NOT SUPPO RT THE CASE OF THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 28/01/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/01/2021 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- HARISH KUMAR JASORIA, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- PR. CIT, ALWAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1194/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR