2024 (1) TMI 742 - AT - Income Tax

Deemed income from house property - Addition made by the AO being the estimated ALV on unsold stock @ 8.5% after deducting 30%, as income from house property - CIT(A) deleted addition - HELD THAT - With the insertion of section 23(5) of the Act by Finance Act, 2017 w.e.f. 01.04.2018 it becomes clear that computing of annual value of property held in stock in trade certain moratorium period has been given for such treatment, however, newly inserted provisions contained under section 23(5) of the Act are to be applicable w.e.f. A.Y. 2018-19 and not to the case at hand. So the Ld. CIT(A) has rightly decided that the assessee is not entitled for taking benefit of the amended provisions contained under section 23(5) of the Act. However, the issue in question has already been decided in favour of the assessee by the co-ordinate Benches of the Tribunal in case of Bengal Shapoorji Housing Development Pvt. Ltd. 2021 (5) TMI 636 - ITAT MUMBAI and Sheth Developers Pvt. Ltd 2022 (6) TMI 1271 - ITAT MUMBAI by holding that deemed notional rental income with regard to unsold flats held as stock in trade cannot be taxed. The co-ordinate Bench of the Tribunal in case of Pegasus Properties Pvt. Ltd 2021 (12) TMI 1210 - ITAT MUMBAI by considering the decision rendered by the Hon ble Delhi High Court in case of Ansal Housing Finance Leasing Co. Pvt. Ltd. 2012 (11) TMI 323 - DELHI HIGH COURT held that such addition is not sustainable up to 2017-18. Thus we are of the considered view that the Ld. CIT(A) has rightly deleted the addition made by the AO on account of deemed rental income qua the unsold stock of flats held in stock in stock in trade up to A.Y 2017-18. Addition u/s 43CA being the excess value of the fair market value than the sale consideration value taken by the assessee - difference of 1.67% in the sale consideration vis- -vis stamp duty valuation - HELD THAT - The co-ordinate Bench of the Tribunal in case of Sai Bhargavanath Infra 2022 (8) TMI 799 - ITAT PUNE held that first proviso to section 43CA inserted by Finance Act, 2020 with effect from 01.04.2021 is applicable retrospectively and thus where difference recorded between sale value of flats sold by assessee and stamp value of such flats was within 10% margin, no addition to be made. In the instant case the difference between the sale value and stamp value is 1.67% and as such within the threshold limit of 10%, so following the order passed in case of Sai Bhargavanath Infra 2022 (8) TMI 799 - ITAT PUNE we are of the considered view that the Ld. CIT(A) has erred in confirming this addition which is ordered to be deleted. So ground No.1 raised by the assessee in its cross objections is hereby allowed.

Summary

Issues Involved:
1. Deletion of addition made on account of deemed income from house property.
2. Confirmation of addition under Section 43CA of the Income Tax Act, 1961.

Summary:

Issue 1: Deletion of Addition on Account of Deemed Income from House Property
The Revenue challenged the deletion of an addition of Rs. 4,24,78,935/- made by the AO, which was based on the estimated Annual Letting Value (ALV) of unsold stock of flats. The AO relied on the Delhi High Court's judgment in CIT vs. Ansal Housing Finance & Leasing Co. Pvt. Ltd. The CIT(A) deleted the addition, stating that Section 23(5) of the Income Tax Act, which provides for computing the annual value of property held as stock-in-trade, is applicable only from AY 2018-19. The Tribunal upheld the CIT(A)'s decision, citing precedents from co-ordinate Benches of the Tribunal and the Gujarat High Court's ruling in CIT vs. Neha Builders (P) Ltd., which held that deemed notional rental income on unsold stock cannot be taxed up to AY 2017-18.

Issue 2: Confirmation of Addition under Section 43CA
The assessee contested the addition of Rs. 2,29,500/- under Section 43CA, arguing that the difference between the sale value and the stamp duty valuation was only 1.67%, within the tolerance limit. The CIT(A) confirmed the addition, interpreting the provisions as prospective from AY 2019-20. However, the Tribunal, following co-ordinate Bench decisions, held that the first proviso to Section 43CA, which allows a tolerance limit of up to 10%, is applicable retrospectively. Consequently, the Tribunal deleted the addition, as the difference was within the 10% margin.

Conclusion:
The Tribunal dismissed the Revenue's appeal and allowed the assessee's cross objections, confirming that no deemed rental income on unsold stock could be taxed up to AY 2017-18 and deleting the addition under Section 43CA due to the retrospective application of the 10% tolerance limit.