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TMI Blog2020 (8) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ther of the appellant for a consideration of Rs. 2,37,500/-. 3. The consideration of Rs. 2,37,500/- was also paid on the date of agreement. Subsequently on 11.10.2010 the property was registered in favour of the Govindbhai Hirjibhai Patel through the Constituted Attorney being Rameshbhai G Patel, the assessee herein, the son of the said Govindbhai Hirjibhai Patel, the purchaser, on behalf of the vendors; however, the vendors signed in that particular deed of registration as the confirming parties. It is pertinent to mention that the Power of Attorney under which the assessee before us has been given the authenticity to sign on behalf of the vendors executed on 06.07.1997 is appearing at Page 40 to 47 of the Paper Book filed before us. It is also a fact that on the date of registration on 11.10.2010 the value of consideration was decided at Rs. 3,00,000/-. The stamp duty paid was of Rs. 2,53,000/-. On the other hand, in terms of the stamp duty valuation, the value of the land was determined at Rs. 51,63,265/-. 4. The AO adopted the value of sale consideration at Rs. 51,62,265/- and made addition of the balance amount. Such addition was further been confirmed by the First Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of payment of stamp duty adopted by stamp duty authority cannot be considered conclusive, in the absence of any cogent material evidencing that appellant has not received the consideration as per the Jantri Value and not as mentioned in the sale deed. 7. The Ld. Counsel appearing that the assessee vehemently argued the matter in favour of his case. The crux of the argument is this that assessee since only signed the deed of sale on behalf of the vendors by virtue of the power of attorney executed on 06.07.1996, he legally cannot be considered as the vendor and addition as capital gain in his hand is not sustainable. Further that the valuation as per the said agreement ought to have been considered instead of Fair Market Value on the basis of the Stamp Duty mentioned and not referring the matter to the DVO for determination of the market price of the property in question is also a deviation from the specified law. 8. On the other hand, the Ld. DR relied upon the orders passed by the authorities below. 9. We have heard the respective parties, we have also perused the relevant materials available on record. 10. It is a fact that by executing the power of attorney as on 06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration and the date of registration of the property being the capital asset is different, the value adopted by the stamp valuation authority on the date of agreement be taken for the purposes of computing full value of consideration of such transfer. In the case in hand, the valuation of property on the basis of the stamp duty valuation as on the date of registration has been determined without referring the matter before the DVO for valuation which ought to have been done by the Revenue; addition made mainly on the valuation assessed by the stamp duty authority is, thus, not permissible. On this issue we have considered the judgment relied upon the by the Ld. AR passed in the Co-ordinate Bench in the matter of Amitkumar Ambalal (HUF) vs. ACIT in ITA No. 3353/Ahd/2014 for A.Y. 2009-10. While dealing with the identical issue the Hon'ble Tribunal has been pleased to observe as follows:- "3. When this appeal was called out for hearing, learned counsel for the assessee submitted that the short issue that he would like to pursue in this appeal is that the stamp duty valuation for the purpose of adopting value of consideration under section 50C should be as on the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of a rational basis because these two values represent the values at two different points of time. In a situation in which there is significant difference between the point of time when agreement to sell is executed and when the sale deed is executed, therefore, should ideally be between the sale consideration as per registered sale deed, which is fixed by way of the agreement to sell, vis-à-vis the stamp duty valuation as at the point of time when agreement to sell, whereby sale consideration was in fact fixed, because, if at all any suppression of sale consideration should be assumed, it should be on the basis of stamp duty valuation as at the point of time when the sale consideration was fixed. Income Tax Simplification Committee set up in 2015, headed by Justice R V Easwar- a former judge of Delhi High Court and one of the most illustrious former Presidents of this Tribunal, took note of this incongruity and, in its very first report (http://taxsimplification.in/REPORT.pdf), observed as follows: 6.1 RATIONALISATION OF SECTION 50C TO PROVIDE RELIEF WHERE SALE CONSIDERATION FIXED UNDER AGREEMENT TO SELL Section 50C makes a special provision for determining the full val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 1st April 2017, inserted the following provisos to Section 50C: Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer: Provided further that the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account, on or before the date of the agreement for transfer." [6] This amendment was explained, in the Memorandum Explaining the Provisions of Finance Bill 2016 (http://indiabudget.nic.in/ub2016- 17/memo/mem1.pdf), as follows: Rationalization of Section 50C in case sale consideration is fixed under agreement executed prior to the date of registration of immovable property Under the existing provisions contained in Section 50C, in case of transfer of a capital asset being land or building on both, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration has been fixed in such agreement" recognizing the incongruity that the date agreement of sell has been ignored in the statute even though it was crucial as it was at this point of time that the sale consideration is finalized. The incongruity in the statute was glaring and undue hardship not in dispute. Once it is not in dispute that a statutory amendment is being made to remove an undue hardship to the assessee or to remove an apparent incongruity, such an amendment has to be treated as effective from the date on which the law, containing such an undue hardship or incongruity, was introduced. In support of this proposition, I find support from Hon'ble Delhi High Court's judgment in the case of CIT Vs Ansal Landmark Township Pvt Ltd [(2015) 377 ITR 635 (Del)], wherein approving the reasoning adopted an order authored by me during my tenure at Agra bench [i..e Rajeev Kumar Agarwal Vs ACIT (2014) 149 ITD 363 (Agra)] which centred on the principle that when legislature is reasonable and compassionate enough to undo the undue hardship caused by the statute "such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as accepted by the Government, were implemented, I, as a judicial officer, would think this was still one step short of what ought to have been done inasmuch as the amendment, in tune with the judge made law, ought to have been effective from the date on which the related legal provisions were introduced. As I say so, in addition to the reasoning given earlier in this order, I may also refer to the observations of Hon'ble Supreme Court, the case of CIT Vs Alom Extrusion Ltd [(2009) 319 ITR 306 SC)], to the following effect: "Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only w.e.f. 1st April, 2004, would become curative in nature, hence, it would apply retrospectively w.e.f. 1st April, 1988 (i.e. the date on which the related legal provision was introduced). Secondly, it may be noted that, in the case of Allied Motors (P) Ltd. Etc. vs. CIT (1997) 139 CTR (SC) 364: (1997) 224 ITR 677 (SC), the scheme of s. 43B of the Act came to be examined. In that case, the question which arose for determination was, whether sales-tax collected by the assessee and paid after the end of the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example-in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March (end of accounting year) but before filing of the Returns under the IT Act and the date of payment falls after the due date under the Employees' Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under s. 43B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under s. 43B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are clearly set out in the sale deed at internal page no.12, which are in accordance with the agreement to sale. Learned counsel thus contends that the bonafides of the agreement to sale, in the light of the dates on which the payments are made, cannot be doubted. On the strength of this submission, we are urged to remit this issue to the file of the Assessing Officer with the direction that the stamp duty valuation as on the date on which the agreement to sale was entered into should be taken for the purposes of application of section 50C and not the date on which the sale deed was actually executed. 5. Learned Departmental Representative, on the other hand, relies upon the orders of the authorities below and submits that the provisions of the statute are clear and unambiguous inasmuch as the relevant date for the purpose of section 50C stamp duty value is the date on which the sale deed is entered into. 6. Having heard the rival contentions and having perused the material on record, we find that the issue in appeal is squarely covered by the Tribunal's decision in the case of Dharamshibhai Sonani (supra), which has been subsequently followed by large number of division bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 the order can be pronounced today i.e. on 27.07.2020. The issue has already been discussed by the Co-ordinate Bench in the case of DCIT vs. JSW Ltd. (ITA Nos. 6264 & 6103/Mum/2018) pronounced on 14.05.2020 in the light of which it is well within the time limit permitted under Rule 34(5) of the Appellate Tribunal Rules, 1963 in view of the following observations made therein: "7. However, before we part with the matter, we must deal with one procedural issue as well. While hearing of these appeals was concluded on 8th January 2020, this order thereon is being pronounced today on the day of 14th May, 2020, much after the expiry of 90 days from the date of conclusion of hearing. We are also alive to the fact that rule 34(5) of the Income Tax Appellate Tribunal Rules 1963, which deals with pronouncement of orders, provides as follows: (5) The pronouncement may be in any of the following manners :- (a) The Bench may pronounce the order immediately upon the conclusion of the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (c) In a case where no date of pronouncement is given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon'ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that "In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15days after the lifting of lockdown". Hon'ble Bombay High Court, in an order dated 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon'ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed "while calculating the time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly". The extraordinary steps taken suo motu by Hon'ble jurisdictional High Court and Hon'ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words "ordinarily", in the light of the above analysis of the legal position, the period during which lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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