Swetasree Ghosh, Kolkata V. ITO, Ward - 30(3), Kolkata, Kolkata

ITA 360/KOL/2022

• Counselvise Citation: [2023] 103 COUNSELVISE.COM (IT) 1230 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 15-03-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 19-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 250

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘एसएमसी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member I.T.A. No.360/Kol/2022 Assessment Year: 2015-16 Swetashree Ghosh....................................................................... Appellant 11C, Jay Jayanti Apartment, 2A Mandiville Gardens, Kolkata-700019. [PAN: AKHPG8121H] vs. ITO, Ward-30(3), Kolkata........................................................ Respondent Appearances by: Shri S.M. Surana, Adv. & Sunil Surana, CA, appeared on behalf of the appellant. Smt. Ranu Biswas, Addl. CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : March 16, 2023 Date of pronouncing the order : March 16, 2023 आदेश / ORDER The present appeal has been preferred by the assessee against the order dated 30.11.2022 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The only issue raised by the assessee in this appeal is relating to the addition made by the Assessing Officer invoking provisions of section 56(2)(vii) of the Act holding that the assessee during the year purchased a property, value of which was less than the stamp duty value of the said property. I.T.A. No.360/Kol/2022 Assessment Year: 2015-16 Swetashree Ghosh 2 3. The ld. Counsel for the assessee has submitted that during the year, only the registration of the property took place. However, transfer of the property as per the provisions of section 2(47) of the Income Tax Act was completed in the year 2011 itself. The ld. Counsel, in this respect, has relied upon the agreement to sale of the year 2007, the reference to which has also been made in the sale deed in question. The ld. Counsel has further explained that the entire sale consideration was paid in the year 2011 itself and the possession of the property was also handed over to the assessee by the concerned seller. That thereafter the assessee even rented out the said property to certain persons and the rental income was also taken into consideration for the purpose of filing of income-tax return etc. That merely because the registration was done in the year 2015 that does not mean that the transfer was not completed in the year 2011. The ld. Counsel has therefore submitted that the impugned addition in the assessment year 2015-16 is not tenable. 4. The ld. DR, on the other hand, has relied upon the findings of the lower authorities. 5. In my view, there is force in the contention of the ld. AR. However, the facts need to be verified at the end of the Assessing Officer. In view of this, the matter is restored to the file of the Assessing Officer with a direction that the Assessing Officer will verify the contentions of the assessee as to the date of completion of the transfer of the property as per the provisions of the Income Tax Act and if the transfer was completed in the year 2011 and the assessee had received the property in the year 2011, then, the provisions of section 56(2)(vii) will not attract in the year under consideration. The Assessing Officer will not I.T.A. No.360/Kol/2022 Assessment Year: 2015-16 Swetashree Ghosh 3 only verify the contention of the assessee about rental income offered on the property for taxation but may also examine the records of the seller whether the seller had booked the sale or give possession of the property in that year. Needless to say that the Assessing Officer will give proper opportunity to the assessee to present necessary details and thereafter, to decide the issue afresh by way of a speaking order. 6. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Kolkata, the 16 th March, 2023. Sd/- [संजय गग[ /Sanjay Garg] ÛयाǓयक सदèय/Judicial Member Dated: 16.03.2023. RS Copy of the order forwarded to: 1. Swetashree Ghosh 2. ITO, Ward-30(3), Kolkata 3. CIT (A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches