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TMI Blog2020 (6) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - Shri S.S. Godara, JM And Dr. A.L. Saini, AM For the Appellant : Shri K. M . Roy, FCA For the Respondent : Shri Supriyo Paul, JCIT ORDER PER DR. A.L. SAINI, AM: The captioned appeal filed by the assessee, pertaining to assessment year 2008-09, is directed against the order passed by the Commissioner of Income Tax (Appeal)-Asansol, in appeal no. 16/CIT(A)/ASL/Cir-3/Asl/17-18, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 29/12/2010. 2. The grounds of appeal raised by the assessee are as follows: 1. That the ld. Assessing Officer is not justified in sending the matter to Valuation Officer to find the value in building and the ld. CIT(Appeals) is not justified in agreeing to the view of the ld. Assessing Officer. 2. That the ld. Assessing Officer is not justified in sending the matter to valuation officer to find the value in building without rejection of the books of accounts and pointing out specifically in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of reasons recorded to make reference to DVO. In response, Assessing Officer reported as under:- In the instant case, during the course of assessment proceedings for the A.Y. 2008-09 reference under section 142A/131 (d) of the Income Tax Act, 1961 to the Divisional Valuation Officer, Kolkata has been made vide this office letter No. DCIT/Circle-3/Asansol/2010-ll/VO/534 dated 22.12.2010 to value the cost of construction of house building/show room (copy of the letter has already been sent). The DVO has sent the dossier of valuation report of the properties to this office vide File No. 20/EE/Val/Ranchi/IT/2010-11 /203 dated 06.06.2011 after completion of assessment under section 143(3) of the Income Tax Act, 1961. A comparative chart showing value of the asset assessed by the DVO and declared by the assessee is tabled asunder:- Financial year Year-wise investment declared by the assessee (Rs.) Value of the asset assessed by the DVO (Rs.) Difference 2007-08 7550416 2008-09 9102389 16652805 17655900 1003095 Hence the difference amount of ₹ 10,03,095/- is undisclosed investment of the assessee and assessment may be enhanced to that amount. On verification of assessment record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is procedural one to compute the value of property. At the cost of repetition, we again reproduce the third proviso to section 50C as follows: The following proviso shall be ins. by Finance Act, 2018 (w.e.f. 1-4-2019): Provided also that where the value adopted or assessed or assessable by the stamp valuation authority does not exceed one hundred and five per cent of the consideration received or accruing as a result of the transfer, the consideration so received or accruing as a result of the transfer shall, for the purposes of section 48, be deemed to be the full value of the consideration. We note that this third proviso relates to determination of value of property therefore it cannot be a substantive amendment. Normally substantive amendments in law in applicable prospective. In view of these discussions, as also for the detailed reasons set out earlier, it is a procedural amendment in law to help the assessee to determine the value or to compute the value of property hence this amendment is not to punish the assessee just because there is minor variation between stamp duty value and the sale consideration. We note that the statute such an amendment in law, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect, the Parliament consciously kept that dichotomy alive up to 1-4-2004, by making Finance Act, 2003, come into force only with effect from 1-4-2004. Hence, according to the Department, Finance Act, 2003 should be read as amendatory and not as curative [retrospective] with effect from 1-4-1988. 9. We find no merit in these civil appeals filed by the Department for the following reasons: firstly, as stated above, section 43B [main section], which stood inserted by Finance Act, 1983, with effect from 1-4-1984, expressly commences with a non obstante clause, the underlying object being to disallow deductions claimed merely by making a Book entry based on Mercantile System of Accounting. At the same time, section 43B [main section] made it mandatory for the Department to grant deduction in computing the income under section 28 in the year in which tax, duty, cess, etc., is actually paid. However, Parliament took cognizance of the fact that accounting year of a company did not always tally with the due dates under the Provident Fund Act, Municipal Corporation Act [octroi] and other Tax laws. Therefore, by way of first proviso, an incentive/relaxation was sought to be given in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from 1-4-1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1-4-1984, when section 43B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P.) Ltd.'s case (supra). This Court, in Allied Motors (P.) Ltd.'s case (supra) held that, when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court, in Allied Motors (P.) Ltd.'s case (supra), held that the first proviso was curative in nature, hence, retrospective in operation with effect from 1-4-1988. It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction (p. 339) For the afore-stated reasons, we hold that Finance Act, 2003, to the extent indicated above, is curative in nature, hence, it is retrospective and it would operate with effect from 1-4-1988 [when the first proviso came to be inserted]. For the above reasons, we find no merit in this batch of civil appeals filed by the Department which are hereby dismissed with no order as to costs. 11. Similarly, the Hon`ble Supreme Court in the case of Allied Moters (P) Ltd, 91 Taxman 205 (SC) held as follows: A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. Accordingly, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,03,095/- (1,76,55,900 1,66,52,805). The said difference of ₹ 10,03,095/- is less than 10% of the valuation shown by the assessee, that is, at ₹ 16,65,280 (10% of ₹ 2,66,52,805/-). The said variation or difference may arise because of various factors and therefore co- ordination bench in the case of Chandra Prakash Jhunjhunwala (supra) took the view that such minor difference should be ignored and no addition should be made on account of such minor variations. We note that the variation in valuation shown by DVO and the valuation made by the assessee does not exceed 10% hence relying on the judgment of Co-ordinate Bench(supra), on the identical issue, as noted above, we delete the addition of ₹ 10,03,035/-. 6. Before parting, it is noted that the order is being pronounced after 90 days of hearing. However, taking note of the extraordinary situation in the light of the Covid-19 pandemic and lockdown, the period of lockdown days need to be excluded. For coming to such a conclusion, we rely upon the decision of the Co- ordinate Bench of the Mumbai Tribunal in the case of DCIT vs. JCB Limited in ITA No. 6264/Mum/2018 and ITA No. 6103/Mum/2018 for A.Y. 2013-14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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