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TMI Blog2024 (6) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... y brought about to cure unintended consequences of section 50(1) even in a bonafide situation, as sub section (1) of section 50 was essentially an anti-avoidance provision. While holding so the Bench had noted Circular 8 of 2018 by the Central Board of Direct Taxes (CBDT) viz. explanatory notes to the Finance Act 2018, which intended the rationalization of section 43CA, section 50C and section 56 of the said Act. It can thus be seen that the CBDT had acknowledged that there can be genuine cases, where there would be a variance between the stamp duty value and the actual consideration received in respect of similar properties depending upon variety of factors . It can be seen that such variance indeed occurs on the basis of location, dimensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant-assessee would be entitled to the benefit of section 50C of the Act. Consequently, the appeal succeeds. The impugned addition stands set aside. X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, the appeal came to be dismissed which order is subject matter of challenge before us. 5. We have heard the learned counsel for the appellant and the learned CIT-DR. With their assistance we have gone through the record. 6. The learned counsel for the appellant has urged that the benefit of the proviso as introduced from the year 2019 needs to be extended to A.Y. 2016-17 also in as much as the operation of the proviso would be retrospective in nature. Reliance in this regard is placed on the decision of a co-ordinate Bench of this Tribunal at Mumbai in Maria Fernandes Cheryl, ITA No. 4850/Mum/2019 for A.Y. 2011-12, decided on 15.01.2021. It is submitted that the variance in this case is less than 5% and the benefit of the proviso nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpose of section 48, be deemed to be the full value of the consideration." 10. It may be mentioned that from 1st April 2021, the words "one hundred and five percent of the consideration" have been substituted by "one hundred and ten percent of the consideration". 11. Be that as it may, the question is whether the benefit of the proviso as aforesaid can be extended in this case. As noticed earlier the issue is no longer res integra as it is covered by the decision of a co-ordinate Bench, at Mumbai in Maria Fernandes Cheryl (supra). That was a case pertaining to A.Y. 2011-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the higher of sale consideration or stamp duty value was adopted. The difference was taxed as income both in the hands of the purchaser and the seller. 16.2 It has been pointed out that the variation between stamp duty value and actual consideration received can occur in respect of similar properties in the same area because of a variety of factors, including shape of the plot or location. 16.3 In order to minimize hardship in case of genuine transactions in the real estate sector, section 43CA, section 50C and section 56 of the Income-tax Act have been amended to provide that no adjustments shall be made in a case where the variation between stamp duty value and the sale consideration is not more than five per cent of the sale con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein it was held as under: "Now that the legislature has been compassionate enough to care these shortcomings of provision, and thus obviate the unintended hardships, such as 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 intended." The co-ordinate Bench in the case of Maria Fernandes Cheryl has noticed that the aforesaid observations have been noted with approval by the Hon'ble Delhi High Court in CIT vs. Ansal Landmark Township Pvt Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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