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TMI Blog2021 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ver of cheque together with the application form is duly supported by an affidavit filed by the sub-broker Shri Gobind M Vaswani who had categorically affirmed that he has collected the application form together with the cheque from the assessee on 24/10/2013 and had indeed handed over the same to authorised agent i.e. M/s. Karvy Stock Broking Ltd., on 24/10/2013 itself. The contents of this affidavit has not been controverted by the revenue by bringing in contrary evidences thereon. The law is very well settled that in the event of an affidavit not tested by the department in the manner known to law, then the contents of the said affidavit is to be construed as true and correct. Reliance in this regard is placed on the celebrated decision of the Hon ble Supreme Court in the case of Mehta Parikh Co. vs CIT[ 1956 (5) TMI 4 - SUPREME COURT] We have no hesitation in holding that assessee is entitled for claim of exemption u/s.54EC of the Act in respect of investment made by her in NHAI capital gain bonds within a period of six months from the date of transfer. Accordingly, the grounds raised by the assessee are allowed. - ITA No.1040/Mum/2019 - - - Dated:- 8-10-2021 - Shri V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot be construed as the full value of consideration as the consideration is driven by market forces. The assessee also placed reliance on the decision of Co-ordinate Bench of Jaipur Tribunal wherein it was held that if the difference between consideration fixed by the stamp valuation authority and the actual consideration is less than 10%, then the actual consideration adopted by the assessee should be accepted. The ld. CIT(A) did not heed to the contentions of the assessee and proceeded to upheld the addition in the sum of ₹ 2,66,000 made by the ld. AO. 3.2. With regard to claim of exemption u/s.54EC of the Act in respect of investment made by the assessee in NHAI capital gain bonds for ₹ 50,00,000/-, both the lower authorities held that assessee had invested the same beyond a period of six months from the date of sale and hence, not eligible for exemption thereon. 4. We find that the difference in consideration adopted by the stamp valuation authority and the assessee is less than 5% and we find that there is an amendment which has been brought in Section 50C of the Act by way of third proviso w.e.f. 01/04/2019 wherein tolerance band of 10% has been specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 . Referring to this decision, and extensively reproducing from the same, including the portion extracted above, Hon'ble Delhi High Court, in the case of CIT v. Ansal Landmark Township (P.) Ltd. [2015] 61 taxmann.com 45/234 Taxman 825/377 ITR 635 (Delhi), has approved this approach and observed that the Court is of the view that the above reasoning of the Agra Bench of ITAT as regards the rationale behind the insertion of the second proviso to section 40(a)(ia) of the Act and its conclusion that the said proviso is declaratory and curative and has retrospective effect from 1st April 2005, merits acceptance . The same was the path followed by another bench of this Tribunal in the case of Dharamashibhai Sonani v. Asstt. CIT [2016] 75 taxmann.com 141/161 ITD 627 which has been approved by Hon'ble Madras High Court in the judgment reported as CIT v. Vummudi Amarendran [2020] 120 taxmann.com 171/42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation, the sale consideration is to be treated as understated. This assumption is, however, laid to rest when the variations between the stated consideration and the stamp duty valuation figure are treated as explained. The insertion of the third proviso to Section 50C(1) provides for this tolerance band with respect to a certain degree of variations between the stamp duty valuation and the stated consideration of an immovable property. In other words, as long as the variations are within the permissible limits, the anti-avoidance provisions of Section 50C do not come into play. As we have noted earlier, the CBDT itself accepts that there could be various bonafide reasons explaining the small variations between the sale consideration of immovable property as disclosed by the assessee vis- -vis the stamp duty valuation for the said immovable property. Obviously, therefore, disturbing the actual sale consideration, for the purpose of computing capital gains, and adopting a notional figure, for that purpose, will not be justified in such cases. On a conceptual note, an estimation of market price is an estimation nevertheless, even if by a statutory authority like the stamp duty v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation in the material facts in this respect in 2021 vis- -vis the material facts in 2003. What holds good in 2021 was also good in 2003. If variations up to 10% need to be tolerated and need not be probed further, under section 50C, in 2021, there were no good reasons to probe such variations, under section 50C, in the earlier periods as well. We are, therefore, satisfied that the amendment in the scheme of Section 50 C(1), by inserting the third proviso thereto and by enhancing the tolerance band for variations between the stated sale consideration vis- -vis stamp duty valuation to 10%, are curative in nature, and, therefore, these provisions, even though stated to be prospective, must be held to relate back to the date when the related statutory provision of Section 50C, i.e. 1st April 2003. In plain words, what is means is that even if the valuation of a property, for the purpose of stamp duty valuation, is 10% more than the stated sale consideration, the stated sale consideration will be accepted at the face value and the anti-avoidance provisions under section 50C will not be invoked. 8. Once legislature very graciously accepts, by introducing the legal amendments in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala on 25/04/2013 for ₹ 58,50,000/-. We find that assessee intended to invest in NHAI capital gain bonds for ₹ 50,00,000/- and claim exemption u/s.54EC of the Act thereon. For this purpose, it has issued a cheque bearing cheque No.100021 dated 24/10/2013 for ₹ 50,00,000/- drawn on Abhyudaya bank along with application for investment in NHAI bonds to M/s Karvy Stock Broking Ltd., the authorised agent of NHAI, through its agent (sub-broker) Mr. Gobind M Vaswani (sub-broker Code No.231865) for ₹ 50,00,000/-. The said application for making investment in NHAI bonds together with the cheque dated 24/10/2013 for ₹ 50,00,000/- was handed over by the assessee to sub-broker Shri Gobind M Vaswani on 24/10/2013 who inturn had handed over the documents along with cheque dated 24/10/2013 to M/s. Karvy Stock Broking Ltd., (authorised agent) on 24/10/2013 itself. M/s. Karvy Stock Broking Ltd., had indeed acknowledged the receipt of application together with the cheque dated 24/10/2013 for ₹ 50,00,000/- by way of affixing its stamp in the application form for investment in NHAI bonds. Thereafter, M/s. Karvy Stock Broking had retained the cheque with it and had h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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