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TMI Blog2020 (1) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of booking by these customers. (b) The learned Commissioner of Income Tax (Appeals) erred in facts and law in sustaining the addition on account of rate difference without appreciating the explanations placed on record and that no evidence of any on-money receipt by the appellant was brought on record by the learned Assessing Officer. (c) The Id. CIT(A) erred in facts and law in applying the amended provisions of sec. SOC by Finance Act, 2016 retrospectively without even appreciating that the flats/shops sold by the assessee were held as stock in trade and not as capital assets. (d) The learned Commissioner of Income Tax (Appeals) erred in law and facts in making the addition based on difference in agreement value and stamp duty value without appreciating that the enabling section of such notional taxation being section 43CA was not applicable for the year under consideration. (a) The action of the learned Commissioner of Income Tax (Appeals) in making an enhancement of Rs. 5.54.863/- in relation to alleged bogus purchases for A'i' 2011-12 is non-est and without jurisdiction. Or. (b)The learned Commissioner of Income Tax (Appeals) erred in facts and law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the new sales. The different was calculated and the variation was calculated of Rs. 3,69,24,038/-.The 15% was allowed on account of the rate workout on account of market conditions, therefore, on money was calculated to the tune of Rs. 3,13,85,432/- and added to the income of the assessee. Feeling aggrieved, the assessee has filed an appeal before the CIT(A) who partly allowed the claim of the assessee but the assessee was not satisfied, therefore, the assessee has filed the present appeal before us. ISSUE NO. 1:- 5. Under this issue the assessee has challenged the disallowance of Rs. 1,38,65,636/- on account of difference in rate per sq.ft. charged to various customers vis-à-vis the market rates per sq.ft. on the date of booking by these customers. At the very outset, the Ld. Representative of the assessee has argued that the no addition can be raised on the basis of the surmises and conjectures. The variation of the rate has duly been explained to the AO but the AO did not verify the facts and works out the difference of rate in sum of Rs. 3,69,24,038/- wrongly and illegally and discounted @ 15% of the said amount and raised the addition to the tune of Rs. 3,13,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rginal difference in the rate per sq. ft. for certain flats M/s Triveni Constructions & Ors ITA Nos. 3778/Mum/2017, 4357/Mum/2017 and Ors was due to various factors such as discounts given to elite customers, better negotiations carried out by known customers, bargaining power of the customers, scenic view of the flat or its location, recession in real estate market, specific demand of the customers, instant requirement of funds prompting the assessee to sell flats at lower rates etc. The assessee-firm had started inviting booking at the end of February 2007 but it could not sell many flats initially for two to three years i.e. upto financial year 2009-10. Also in FY 2008-09, the assessee was facing acute shortage of funds. Accordingly, considering the overall situation, only three flats could be sold in the FY 2008-09. Therefore, the assessee- firm hiked the rates from Rs. 2500/- per sq. ft. to Rs. 3000/- per sq. ft. in the FY 2009-10, in order to cover the losses against the sale of flats in earlier years. The assessee-firm gradually increased the rate to Rs. 3,500/- per sq. ft. in the FY 2010-11 by providing better amenities in the flats sold. It is found that the assessee fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital asset or short-term capital asset. It may be depreciable or non-depreciable asset. (2) The sale consideration is less than value adopted by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer. If the above conditions are satisfied, the value adopted by the stamp duty authority shall be taken as full value of consideration for the purpose of computation of capital gains. In the case of Inderlok Hotels (P.) Ltd. v. ITO (2009) 32 SOT 419 (Mum) and CIT v. Thiruvengadam Investments (P.) Ltd. (2010) 320 ITR 345 (Mad), it is held that section 50C is not applicable for calculating business income u/s 28. Thus section 50C is applicable if a capital asset (being land or building or both) is transferred for a consideration which is lesser than stamp duty value. In such case, value assessed (or assessable) by stamp duty authority shall be taken as full value of consideration for the purpose of computation of capital gain. The Finance Act, 2018 has inserted section 43CA w.e.f. assessment year 2014-15. It provides that where the consideration for the transfer of an asset (other than capital asset), being land or building or both, is le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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