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TMI Blog2021 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... s duly supported by decision in the case of Allied Moters (P) Ltd. [ 1997 (3) TMI 9 - SUPREME COURT] as held that proviso which is inserted to remedy unintended consequences and to make the proviso workable, a proviso which supplies an obvious omission in the section and is require to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation. Undoubtedly this amendment was done to obviate hardships arising out of minor variation in value of transaction qua 50C valuation. In this view of the matter assessee s plea succeeds. Hence, we set aside the orders of the authorities below and decide the issue in favour of the assessee. - I.T.A. No. 4916/Mum/2019 - - - Dated:- 1-7-2021 - Shri Shamim Yahya (AM) And Shri Pavankumar Gadale (JM) For the Assessee : Shri Girish Jain For the Department : Shri Vijaykumar Menon ORDER PER SHAMIM YAHYA (AM) :- This is an appeal by the assessee directed against the order of learned CIT(A) dated 21.5.2019 and pertains to assessment year 2016-17. 2. Grounds of appeal read as under :- 1. The order dated 30.11.2018 passed by the Assessing Officer is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stated consideration for the purchase was lower than the ready reckoner rate. The difference exceeded by fifty thousand rupees and, therefore, the AO show caused the assessee as to why difference should not be brought to tax as per section 56(vii)(b) of the Act. The assessee claimed that there was an amendment as per the Finance Act, 2018, as per which relaxation was provided in as much as it was stipulated that where the date of agreement fixing the amount of consideration for transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of agreement may be taken for the purpose of section 56(vii)(b). However Assessing Officer did not accept this. The AO noted that the amendment referred to by the assessee does not cover the case of the assessee and, therefore, addition of ₹ 4,55,000/- was made. 4. Upon assessee s appeal learned CIT(A) noted that in the appellate proceedings, the submissions filed before the AO was reiterated. That reference was made to the speech of Hon'ble Finance Minister in respect of the budget presented on 01.02.2018. That it was stated that where the stamp duty value does not exceed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n between stamp duty value and the sale consideration is not more than five percent of the sale consideration. We would like to bring Your Honor's attention to section 50C of the Income Tax Act, 1961.Sec 50C of the Income Tax Act, 1961 states that Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the stamp valuation authority ) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer : Provided also that where the value adopted or assessed or assessable by the stamp valuation authority does not exceed one hundred and [ten] 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled legal position to the effect that a curative amendment to avoid unintended consequence is to be treated as retrospective in nature even though it may not state so specifically. We thus, humbly request your honor to consider the amendment in sec 50C of the Income Tax Act, 1961 as an amendment having retrospective effect Further, in the case law of Smt. Cheryl Maria Fernandes, Vs. ITO (It)-2(3)(l), Mumbai 'I' Bench, ITA No. 4850/Mum/2019 AY 2011-2012 the Honorable ITAT -Mumbai has held that the legislature has been compassionate enough to cure these shortcomings of provisions, and thus obviate the unintended hardships, such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically, the insertion of second proviso must be given retrospective effect from the point of time when the related legal provision was introduced. In our humble understanding, it is a case of a curative amendment to take care of unintended consequences of the scheme of sec 50C. This, insertion of the third proviso to sec 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration so received or accruing as a result of the transfer shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration. (2) The provisions of sub-section (2) and sub-section (3) of section 5OC shall, so far as may be, apply in relation to determination of the value adopted or assessed or assessable under sub-section (1). Thus, sec 43CA clearly states that there is a nexus between sec 50C r/w section 43CA Further, sec 56 (vii)(b) of the Income Tax Act, 1961 states that (vii) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009 but before the 1st day of April, 2017- (b) any immovable property,- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: (c) any property, other than immovable property,- (i) without considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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