|CORAM:||Madhumita Roy (JM), Pradip Kumar Kedia (AM)|
|SECTION(S):||234A, 234B, 56(2)(viib)|
|CATCH WORDS:||234B interest, deemed income, Interest|
|DATE:||January 20, 2020 (Date of pronouncement)|
|DATE:||January 25, 2020 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|(i) 56(2)(vii)(b): The amendment w.e.f AY 2014-15 will not apply to a purchase transaction of immovable property for which full consideration is paid pre the amendment. Mere registration at a later date will not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The Revenue is debarred to cover the transaction where inadequacy in purchase consideration is alleged (ii) Interest u/s 234A & 234B is chargeable with reference to the returned income and not the assessed income|
IN THE INCOME TAX APPELLATE TRIBUNAL
“RANCHI” BENCH, RANCHI
BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER
& SMT. MADHUMITA ROY, JUDICIAL MEMBER
आयकर अपील सं./I.T.A. No. 327/Ran/2018
( नधा रण वष / Assessment Year : 2014-15)
Bajrang Lal Naredi बनाम/ Income Tax Officer
Chhata Compound, Baralal Vs. Ward-1(3),
Street, Upper Bazar, Near Jamshedpur, Jharkhand
Ranchi Express, Ranchi –
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : ABOPN9645F
(अपीलाथ /Appellant) .. ( यथ / Respondent)
अपीलाथ ओर से /Appellant by : Shri Anand Pasari with Shri Nitin Pasari, Advocates यथ क ओर से / Smt. Nisha Singhmarr, JCIT Respondent by :
सन ु वाई क तार ख / Date of 05/11/2019 Hearing घोषणा क तार ख /Date of 20/01/2020 Pronouncement आदे श/O R D E R PER PRADIP KUMAR KEDIA – AM:
The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals), Jamshedpur (CIT(A)’ in short), dated 09.07.2018 arising in the assessment order dated 31.08.2016 passed b y the Assessing Officer (AO) under s. 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2014-15.
ITA No. 327/Ran/18 (Bajrang La l Naredi vs. ITO] AY 2014-15 – 2 –
2. As per multiple grounds of appeal, the assessee has essentiall y raised two grievances; (i) applicabilit y of amended provisions of Section 56(2)(vii)(b) of the Act in the facts and circumstances of the case; & (ii) chargeabilit y of interest under s.234B of the Act on additions made.
3. The assessee in the year under consideration registered in his name, an immovable propert y on 17.06.2013 against the actual purchase of propert y on 15.04.2011 in FY 2011-12. The purchase consideration was determined at Rs.9,10,000/- at the time of agreement for purchase in FY 2011-12 and accordingl y the payment was made at the time of such agreement to the vendor. As noted, the registration was however carried out at a belated stage on 17.06.2013 on which date the stamp dut y valuation stood at a higher figure at Rs.22,60,000/-. The AO noticed the alleged under-valuation in the purchase price of the property qua stamp dut y valuation and applied provisions of Section 56(2)(vii)(b) of the Act and worked out the adjusted purchase consideration of Rs.18,89,350/-. The AO accordingl y treated the difference of Rs.9,79,350/- as ‘deemed income’ having regard to the provisions of Section 56(2)(vii)(b) of the Act as amended b y Finance Act, 2013 and applicable to AY 2014-15 onwards.
4. In the first appeal, the CIT(A) did not give an y relief on inapplicabilit y of amended provisions of Section 56(2)(vii)(b) of the Act to the facts of the case as claimed b y the assessee.
5. Further aggrieved, the assessee preferred appeal before the Tribunal against the order of the C IT(A).
6. We have carefull y considered the rival submissions on the issue. In the instant appeal, the applicabilit y of Section 56(2)(vii)(b) of the Act as amended b y Finance Act, 2013 and applicable to AY 2014-15 in question. On a perusal of pre-amended provisions of Section 56(2)(vii)(b) of the Act, we gather that where an individual or HUF receives from an y person an y immovable propert y without consideration, the provisions of pre- amended Section 56(2)(vii)(b) of the Act would appl y.
provisions was however substituted b y Finance Act, 2013 and made applicable to AY 2014-15 onwards. As per the amended provisions, the scope of substituted provision was expanded to cover purchase of immovable propert y for inadequate consideration as well. It is alleged on behalf of the Revenue that the amended provision will apply in view of the fact that registration has been carried out during the FY 2013-14 concerning AY 2014-15 where the amended law came into force. The assessee, on the other hand, seeks to claim that his case would be covered b y pre-amended provision in view of the fact that agreement for purchase of the propert y was entered into with the prospective seller in FY 2011-12 relevant to AY 2012-13 at which time the new law did not come into play. It was claimed that the purchase consideration was dul y paid at the time of agreement in FY 2011-12 and the purchase was de facto completed except for the formalit y of registration. It was thus submitted that the transactions entered prior to the FY 2013-14 would be governed b y the pre-amended provision which triggers the applicabilit y of such provision onl y where there is a total lack of consideration and does not cover a case of inadequacy in purchase consideration.
7. We find merit in such plea advanced on behalf of the assessee. It is not in dispute that purchase transactions of immovable propert y were carried out in FY 2011-12 for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction alread y executed in the earlier years and substantial obligations have alread y been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus appl y and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingl y set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed b y the assessee.
ITA No. 327/Ran/18 (Bajrang La l Naredi vs. ITO] AY 2014-15 – 4 –
8. Second issue concerns chargeabilit y of interest under s. 234B of the Act on assessed income qua return income.
8.1 We find that identical issue has come up before the co-ordinate bench of ITAT in ITO vs. M/s. Anand Vihar Construction Pvt. Ltd. ITA No. 335/Ran/2017 order dated 28.11.2018 wherein the issue was dealt with as under:
“16. We have hear d rival submissions and per used the material on record. Pri ma facie the disputed issue, being charging of interest u/s.234A & 234B as envisaged by ld. AR, is covered by the decisi on of Hob’ble jurisdictional High Court in the case of Ajay Prakas h Verma in ITA No.38 of 2010 reported in 2013(1) TM I 140. The Hon’ble Court in Para23 &24 held as under :-
“23. Learned counsel for the appellant submitted that it has been ordered by the AO that interest be charged as per rule. Interest can be levied under Section 234A and 234B of the Act. It is submitted that in view of the judgment of Full Bench of Ranchi Bench of Patna High Court delivered in the case of Smt. Tej Kumari Vrs. Commissioner of Income-tax r eported in [ 2001] the interest cannot be levied over the assessed income and it can be levied only on the income declared in the return. The revenue preferred SLP before Hon’ble Supreme Court against the said judgment of the Full Bench of Patna Hi gh Court, which was dismissed by the Hon’ble Supreme Court on merits vide order dated 01.08.2000 by s aying that there is no merit in the appeal.
24. Learned counsel f or the revenue could not dispute this legal position.
Therefore, so far as question of law involved in this appeal that whether the interest could have been levied against the assessed income of the assessee under Sections 234A and 234B i s concerned, in view of the Full Bench judgment of Ranchi Bench of Patna High Court del ivered in the case of Smt. Tej. Kumari, the revenue can levy the i nterest only on the tot al income declared in the returns and not on the income assessed and determined by the AO to that extent. The orders pas sed by the authorities below are accordingly modified and interest shall be chargeable in the light of the Full Bench judgment, referred above.”
17. Ld. AR also placed reliance on the deci sion of coordinate bench of the Tribunal in the case of Shri Girdhari Lal Shar ma vs . ITO, Ward- 1(4), Jams hedpur in I TA No. 31/Ran/2013 by an order dated 07.05.2012 in para No. 6 relying upon the above decisi on of the Hon’ble Jharkhand High Court held :-
” We accordingly fol lowing the above decision, direct the Assessing Officer to re-compute the interest under section 2348 ITA No. 327/Ran/18 (Bajrang La l Naredi vs. ITO] AY 2014-15 – 5 –
on the basis of the total income declared by the assessee in the return filed.”
18. We respectfully following the decision of t he jurisdictional High Court and the decision of coordinate bench of the Tribunal direct the AO to recomputed the i nterest u/s.234B on the basis of total income declared by the assessee in the return filed. This gr ound of Cross Objection of the asses see is allowed.”
8.2 In consonance with the view expressed b y the co-ordinate bench holding that interest under s.234A & 234B of the Act is chargeable with reference to returned income onl y, we are inclined to adjudicate the legal objection raised b y way of additional ground in favour of the assessee.
8.3 In the result, second issue concerning chargeabilit y of interest under s.234B of the Act is allowed.
9. In the result, appeal filed b y the assessee is allowed.
This Order pronounced in Open Court on 20/01/2020 Sd/- Sd/-
(MADHUMITA ROY) (PRADIP KUMAR KEDIA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ranchi: Dated 20/01/2020