2024 (2) TMI 831 - AT - Income Tax

Addition u/s 43CA - difference in the value of sale consideration of the of property as shown by the assessee and value adopted by the Sub-Registrar for stamp duty purposes - as submitted 90% payment made by the seller within 4-5 days of agreement dated 10.09.2008 prior to registration date - revenue s only contention is that on the date of the agreement the assessee is has not received any money and on this aspect of ld. DR relied on the decision of Spytech Buildcon 2021 (7) TMI 725 - ITAT JAIPUR - HELD THAT - Assessee had entered into the sale agreement for sale of the immovable property for a consideration of Rs. 1,51,00,000/- on 10/09/2008, i.e. much earlier to enactment of provisions of Sec. 43CA in the statute w.e.f. 01/04/2014 applicable from assessment year 2014-15. That apart, the peculiar feature of the case is that in the case of the assessee received 90% of the sale consideration within just five days of the date of agreement on 10/09/2008, i.e. by 15/09/2008 and the balance consideration was also received on 19/03/2014 at the time of final sale deed. Thus, the assessee would not have anticipated or predicted the enactment of new provisions of Sec. 43 CA from assessment year 2014-15 while executing the agreement to sell on 10/09/2008 and even the provision of section 43CA (3) deals with such a situation. DR reliance on the decision of Spytech Buildcon (Supra) is unacceptable as facts that pari materia different is that in this case the agreement is supported by the flow of consideration by an account payee cheque and 90 % of the money received in the 5 days of the agreement to sale in year 2008. The bench noted section 43CA provides that when an assets being stock in trade on the date of agreement provided the consideration or a part of it has been received by him on or before the date of agreement. In case the date of agreement fixing consideration and date of registration are different, then for the purposes of determination of value under the section, the value as on the date of agreement shall be considered, provided the consideration or part of consideration is received the value as on the date of agreement shall be considered, provided the consideration or part of consideration is received prior to date of agreement by any mode other than cash. As assessee when entering into the final sell deed also has reference to the same consideration that has been flowed in 2008 and based on that agreed rate the sell deed is executed. The provision of section 43CA(3) already dealt with the exception and therefore, we found merits in the facts that the assessee has agreed by an agreement to sell the property at predetermined price at Rs. 1,51,00,000/- and the consideration to that has been flowed for an amount of Rs. 1,35,90,000 and a sum of Rs. 1,34,90,000 received by a banking challan. Based on that set of facts provision of section 43CA(3) clearly attract and thus, the addition is vacated. Decided in favour of assessee.

Issues Involved:
1. Addition under Section 43CA of the Income Tax Act, 1961.
2. Application of Section 43CA(1) ignoring provisos to Section 43CA(3) and 43CA(4).
3. Dismissal of appeal without considering detailed submissions.
4. Validity of penalty under Section 271(1)(c) of the Income Tax Act, 1961.

Summary:

Issue 1: Addition under Section 43CA of the Income Tax Act, 1961

The assessee, a private limited company engaged in real estate, sold property for Rs. 1,51,00,000, but the sub-registrar valued it at Rs. 2,77,87,868 for stamp duty purposes. The Assessing Officer (AO) added the difference of Rs. 1,26,87,868 to the assessee's income under Section 43CA. The CIT(A) upheld this addition, noting the assessee received part payment by cheque after the agreement date, making Section 43CA(1) applicable. The assessee argued that 90% of the consideration was received within five days of the agreement in 2008, much before Section 43CA became effective in 2014.

Issue 2: Application of Section 43CA(1) ignoring provisos to Section 43CA(3) and 43CA(4)

The assessee contended that the provisions of Section 43CA should not apply as the agreement was executed in 2008, and 90% of the consideration was received within five days. The Tribunal noted that Section 43CA(3) and (4) allow for the consideration on the date of agreement to be used if part of the consideration is received by any mode other than cash on or before the agreement date. The Tribunal found that the assessee received Rs. 1,34,90,000 through cheque on 15/09/2008, fulfilling the provisos, and thus the addition under Section 43CA was vacated.

Issue 3: Dismissal of appeal without considering detailed submissions

The Tribunal observed that the CIT(A) failed to consider the detailed submissions and case laws cited by the assessee, violating principles of natural justice. The CIT(A) merely quoted the AO's order without addressing the assessee's arguments, leading to a non-speaking order.

Issue 4: Validity of penalty under Section 271(1)(c) of the Income Tax Act, 1961

Since the Tribunal deleted the addition under Section 43CA, the consequent penalty of Rs. 41,16,578 under Section 271(1)(c) did not survive. The appeal against the penalty was deemed infructuous.

Conclusion:

The Tribunal allowed the assessee's appeal, vacating the addition under Section 43CA and the consequent penalty under Section 271(1)(c). The Tribunal emphasized the importance of considering detailed submissions and following statutory procedures.

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