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TMI Blog2023 (12) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... e of execution of the sale deed, rather, the object and purpose of the provisions will be achieved by taking the stamp duty value as on the date of execution of the agreement in the light of the peculiar facts and circumstances of this case. Moreover, the issue is otherwise decided by the Coordinate bench of the Tribunal in the case of Disha Construction [ 2021 (6) TMI 614 - ITAT MUMBAI] wherein Tribunal further relied upon the decision of Swananda Properties (P) Ltd [ 2019 (9) TMI 1270 - BOMBAY HIGH COURT] held that the provisions of Sec.43CA would not have retrospective application and accordingly, do not apply to agreement executed prior to its introduction. Thus since the provisions to section 43CA have been introduced w.e.f. 01.04.2014 and the agreement to sell was entered prior to the 1 st April 2014 and therefore, the condition of payment or part payment of consideration on or before the date of agreement cannot be imposed back-dated as the assessee could not have foreseen the introduction of section 43CA. Thus additions made by the Assessing Officer/CIT(A) on the above issue are not sustainable and the same are accordingly ordered to be deleted. Additions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he difference between the sale consideration and stamp duty value in respect of 18 properties as under: Sl. No. Deed No. Sale value/ consideration value Stamp duty value Difference 1 1-060503596/2014 Registered on 21.05.2014 27,36,300 29,96,900 2,60,600 2 1-060503610/2014 Registered on 21.05.2014 27,14,800 28,50,540 1,35,740 3 1-060503616/2014 Registered on 21.05.2014 14,70,000 16,17,000 1,47,000 4 1-060504999/2014 Registered on 04.07.2014 25,19,000 26,33,500 1,14,500 5 1-060505483/2014 Registered on 21.07.2014 23,41,500 27,87,500 4,46,000 6 1-060505484/2014 Registered on 21.07.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 17 properties at Rs. 1,83,68,710/- and added the same into the income of the assessee u/s 43CA of the Act. He also added the amount of Rs. 12,05,200/- on account of concealment of sale consideration relating to the 18 th property. 3. The ld. CIT(A) confirmed the additions so made by the Assessing Officer. The assessee, thus, has come in appeal before us with the following grounds of appeal:. 1. For that the Ld. CIT(A) erred in confirming the action of the A.O while passing the assessment order in haste without affording the assessee a reasonable opportunity of being heard. 2. For that on the facts and circumstances of the case, the Ld. CIT(A) erred in accepting the addition made by the AO for a sum of Rs. 1,83,68,710/- under sec. 43CA being the difference in the value taken by the Registration Authority for the purpose of stamp duty and the actual sale consideration without taking into account the stamp valuation on the date of signing of the agreement in earlier years and even otherwise the addition was not called for. 3. For that even otherwise the consideration agreed as per the agreement of sale was fair and reasonable as on the date of agreement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one hundred and twenty per cent had been substituted, if the following conditions are satisfied, namely:- (i) the transfer of such residential unit takes place during the period beginning from the 12 th day of November, 2020 and ending on the 30 th day of June, 2021; (ii) such transfer is by way of first time allotment of the residential unit to any person; and (iii) the consideration received or accruing as a result of such transfer does not exceed two crore rupees] (2) The provisions of sub-section (2) and sub-section (3) of section 50C shall, so far as may be, apply in relation to determination of the value adopted or assessed or assessable under sub-section (1). (3) Where the date of agreement fixing the value of consideration for transfer of the asset and the date of registration of such transfer of asset are not the same, the value referred to in sub-section (1) may be taken as the value assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer on the date of the agreement. (4) The provisions of sub-section (3) shall apply only in a case where the amount of consideration or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. That the facts and circumstances on the file would reveal that the sale consideration as mentioned in the sale deed is as per the agreement for sale of flat as placed in the paper-book. 8. The next contention raised by the ld. counsel for the assessee is that the provisions to section 43CA have been inserted w.e.f 01.04.2014, whereas, the assessee had entered into agreement of sale of flats with the buyers in the year 2012-13 itself and therefore the assessee could not have foreseen the provisions of section 43CA and that the condition of accepting the part of sale consideration through cheque/banking mode/electronic mode could not have been fastened upon the assessee in a retrospective manner applying the provisions of section 43CA of the Act. The ld. counsel in this respect has also relied upon the decision of Coordinate bench of the Tribunal in the case of Disha Construction vs. JCIT in ITA No.5538/Mu/2019 order dated 17.06.2021. The ld. AR has further submitted that even otherwise, the difference between the stamp duty value and the sale consideration in respect of properties mentioned at serial no. 1,3,4,7,9,10,11,12 was less than 10% and therefore, even otherwise no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,200.00 9/10/2012 16/6/2012 50,000 21/4/2014 2,633,500 2300 114,500 60504999 5 Sunil Hazra 303 1115 2,341,500 2,100.00 28/8/2012 4/6/2013 50,000 18/7/2014 2,787,500 2500 446,000 60505483 6 Prabhat Kumar Dutta Ors G-1 1265 2,530,000 2,000.00 20/5/2013 11,000 18/7/2014 5,439,500 4300 2,909,500 60505484 7 Mousumi Laha 405 707 1,484,700 2,100.00 22/5/2013 60,000 18/7/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 102 1112 2,001,600 1,800.00 19/02/2013 5/10/2012 100,000 25/7/2014 2,568,720 2310 567,120 60506014 15 Menoka Jewellery S- 1A 737 1,474,000 2,000.00 1/6/2013 29/4/2013 50,000 1/12/2014 4,643,100 6300 3,169,100 60508780 16 Menoka Jewellery S-5 669 1,204,200 1,800.00 1/6/2013 11/5/2013 50,000 1/12/2014 4,214,700 6300 3,010,500 60508781 17 Menoka Jewellery S-1 713 1,426,000 2,000.00 1/6/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (4) is to avoid the introduction of any bogus back-dated agreement to sell to claim a lesser stamp duty value of a past date. The payment through cheque is required to ensure that the agreement to sell, if any, relied upon by the assessee has been actually executed and acted upon as back dated cheque payment cannot be claimed by an assessee. In the case in hand, though some of the parties had not made initial payment i.e. on or before the date of agreement through cheque/banking mode, however, the facts show that the some of the payments were made in each case much before the execution of the sale deed. Under the circumstances, it cannot be said that the agreement to sell relied upon by the assessee are bogus, rather, the payment of consideration in this case has been settled and paid as per the terms of the agreement. Under the circumstances, in the peculiar facts and circumstances, it will not be justified to adopt the stamp duty value as on the date of execution of the sale deed, rather, the object and purpose of the provisions will be achieved by taking the stamp duty value as on the date of execution of the agreement in the light of the peculiar facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a means to consider proper sales value of transfer of the flats. At the relevant time i.e. for the assessment year 2005-06, the only provision for application of deemed value for consideration was found under Section 50C of the Act relating to capital assets. At the relevant time there was no provision in the Act for deeming the consideration received on sale of goods/assets other than capital assets on the basis of stamp duty valuation. However, this provision in the form of Section 43CA of the Act has been introduced with effect from 1 April 2014. The present case pertains to the assessment year 2005-06. Therefore, Section 43CA of the Act will have no application for the subject Assessment Year. 13. In the case of CIT v. Neelkamal Realtors Erectors India (P.) Ltd. [2017] 79 taxmann.com 238/246 Taxman 274, the Division Bench of this Court had an occasion to consider the value of the flat in case of sale by the Developer in the context of section 50C and section 56(2)(vii)(b)(ii) of the Act. The Division Bench observed thus: 3. Regarding question No. (i): ** ** ** (f) It is self evident from reading of section 50C of the Act it would not have any ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gain difference between the stamp valuation and the sale price of a capital asset. For obvious reasons, this provision would not apply in case of a builder for whom such immovable property is in nature of stock in trade and not capital asset. To overcome this difficulty the legislature had inserted Section 43CA under Finance Act, 2013 w.e.f 1.4.2014. This provision would enable the Revenue to tax the income arising out of sale of stock by a deeming fiction where subject to certain conditions, stamp valuation of such stock would substitute the actual receipt thereof. In absence of any such statutory provisions, giving rise to the deeming fiction, the Revenue cannot tax any amount which has not been received by a seller of an immovable property at the time of sale. (Emphasis Supplied) No contrary decision is shown. 15. As regards the decision in the case of Associated Builders relied upon by the Appellant- Revenue, it arose in the context of valuation of assets including stock in trade on dissolution of a partnership firm. This Court was concerned with the issue whether, when the asset was valued on the basis of book value as provided in the contract between the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced w.e.f. 01.04.2014 and the agreement to sell was entered prior to the 1 st April 2014 and therefore, the condition of payment or part payment of consideration on or before the date of agreement cannot be imposed back-dated as the assessee could not have foreseen the introduction of section 43CA. 12. In view of the above discussion, considering the peculiar facts and circumstances of the case and the decision of the co-ordinate bench of the Tribunal, the additions made by the Assessing Officer/CIT(A) on the above issue are not sustainable and the same are accordingly ordered to be deleted. 13. Ground No.5 Vide Ground No.5, the assessee has agitated the action of the CIT(A) in making the addition of Rs. 12,05,200/- on account of concealment of sale consideration. 14. The ld. counsel in this respect has relied upon the chart as reproduced above and further followed by the copies of the sale deed/gift deed placed at page 44 and page 74 of the paper-book respectively to submit that in fact the flat no. 2 was sold by the land-owner and not by the assessee and similarly flat no. 8 was also transferred by way of gift by the land-owner and not by the assessee. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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