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TMI Blog2022 (6) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act, 1961 (hereinafter referred to as Act) dated 30/12/2016 by the ld. Asst. Commissioner of Income Tax 33(1), Mumbai (hereinafter referred to as ld. AO). ITA No.2603/Mum/2019 (A.Y.2014-15) This appeal in ITA No.2603/Mum/2019 for A.Y.2014-15 preferred by the order against the revision order of the ld. Pr. Commissioner of Income Tax-33, Mumbai u/s.263 of the Act dated 28/03/2019 for the A.Y.2014-15. Identical issues are involved in both these appeals and hence they are taken up together and disposed of by this common order. 2. Let us take up the appeal of the assessee in ITA No.1244/Mum.2019 first. 3. The only issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in confirming the addition made u/s.43C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. This action was confirmed by the ld. CIT(A). 3.2. At the outset, the assessee had pleaded that allotment of Flat No.405 was made to the prospective buyer way back in February 2011 itself. It was pleaded that the provisions of Section 43CA of the Act was introduced in the statute only w.e.f. A.Y.2014-15. Hence, the stamp duty value in terms of Section 43CA of the Act could not be applied in respect of subject mentioned transaction where the allotment was made in February 2011 whereas the property was ultimately sold by way of registered sale deed in February 2014. We find from the copy of sale deed registered on 22/02/2014 that flat No.405 was ultimately sold for Rs.62,55,000/-. The copy of sale deed is enclosed from pages 56 to 90 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Towards corpus fund for up-keep and maintenance And facilities - Rs.1,03,320/- viii) Towards club house charges - Rs.1,50,000/- Total Rs.3,93,246/- 3.3. It was pleaded by the ld. AR that this is an additional sum of Rs.3,93,246/- received from the buyer of the flat and hence the same also is required to be treated as consideration as ultimately it is left to the discretion of the builder i.e. assessee herein to bifurcate the total consideration into several parts as detailed supra. Hence, if this Rs.3,93,246/- is also added to the sale consideration mentioned in the sales deed to Rs.62,55,000/- then the total consideration of the property would be Rs.66,48,246/- and that when the said sum is compared with the stamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 and therefore, having retrospective applicability thereon. The language of provisions of Section 50C are exactly pari materia with provisions of Section 43CA of the Act. Hence, though the aforesaid decision was rendered in the context of Section 50C of the Act, the same analogy would apply for provisions of Section 43CA of the Act also as similar proviso is available in Section 43CA of the Act also. Hence, respectively following the aforesaid decision of this Tribunal, we hold that the difference of Rs.4,42,460/- added by the ld. AO in the assessment falls below the tolerance band of 10% and hence, by applying the proviso to Section 43CA of the Act, no addition is required to be made in the instant case u/s.43CA of the Act. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisions of Section 43CA of the Act had been duly made by the ld. AO in the assessment proceedings itself. Hence, it cannot be said that the ld. AO had not made any enquiry on the impugned issue. The ld. AO was fully conscious of the fact while framing the assessment that though the sale deed was registered in February 2014, the initial allotment was made in February 2011 itself by the assessee in respect of flat No.405. Hence, in respect of flat No.405 and other flats, as the case may be, the ld. AO was also conscious of the fact that the five flats were sold during the assessment year 2014-15 by the assessee. After understanding and perusal of all the sale deeds which were placed on record by the assessee vide page No.55-216 of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . AO did not resort to make any addition u/s.43CA of the Act in respect of these four flats. Whereas in respect of flat No.405, the ready reckoner rate at the time of initial booking was higher than the reported sale consideration. Hence, an addition of Rs.4,42,460/- was made by the ld. AO in respect of Flat No. 405 alone in the assessment. Hence, it could not be said that the ld. AO had not made any enquiry in this regard. In the instant case, the ld. AO had duly applied the provisions of the Act more particularly the provisions of Section 43CA(3) and 43CA(4) of the Act. We find that the ld. PCIT in the instant case is proceeding on incorrect application of provisions of Section 43CA of the Act by directing the ld. AO to adopt the ready re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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