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TMI Blog2023 (8) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs in cash as per the sale agreement dated 15.06.2006, therefore, in view of the amended provisions of section 50C(1) which according to us is retrospective in nature, the value adopted or assessed or assessable by the Stamp Valuation Authority on the date of agreement has to be taken for the purpose of full value of the consideration. With this observation, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to verify the circle rate on the date of agreement dated 15.06.2006 and adopt the same for the purpose of calculation of the capital gain in the hands of the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes. - SHRI R.K. PANDA, VICE-PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER For the Appellant : Shri K.A. Sai Prasad, CA For the Respondent : Shri K Madhusudan, CIT(DR) ORDER Per R.K. Panda, Vice-President This appeal filed by the assessee is directed against the order dated 28.01.2023 of the Assessing Officer passed u/s 147 r.w.s. 144 of the I.T. Act, 1961 for the A.Y. 2013-14. 2. Facts of the case, in brief, are that the assessee is a Non-resident Individual. It was seen as per i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is thedeemed sale consideration in the hands of the assessee for the purpose of capital gain computation. In absence of any compliance from the side of the assessee, the Assessing Officer completed the assessment u/s 144 r.w.s. 147 of the Act determining the long- term capital gain in the hands of the assessee at Rs. 41,35,125/-. 4. Since the assessee is an NRI and as per the provisions of section 144C(15), the Assessing Officer issued a draft assessment order. The assessee filed objections before the DRP vide application dated 19.5.2022. However, the DRP upheld the proposed addition made by the Assessing Officer but gave direction to the Assessing Officer to allow indexed cost of acquisition while computing the capital gains. The Assessing Officer accordingly, after allowing the indexed cost of acquisition, made addition of Rs. 27,86,328/- in the hands of the assessee. 5. Aggrieved with such order of the learned CIT (A) the assessee is in appeal before the Tribunal by raising the following grounds: 1. The direction of the Ld.DRP-1 and order of the assessing officer dated 28-01-2023 are erroneous, and contrary to the law and facts of the case. 2. The order passed by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- (Rupees Nine Lakhs only) by way of Cheque bearing No. 372564, dated 15.09.2006 drawn on The Karur Vysya Bank Limited, R.P. Road Branch, Secunderabad; 6.1.1 He submitted that the above amounts were credited to the Bank Account and the cheques have been duly cleared and reflected in the bank account of the assessee. 6.2 Referring to the provisions of section 50C(1) he submitted that where the date of agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the Stamp Valuation Authority on the date of agreement should be taken as the value. He submitted that in the present case the correct value that has to be adopted is the rate applicable on the date of agreement as against the date of actual sale. Referring to various decisions including the decision of the Hon'ble Madras High Court in the case of CIT vs. Shri Vummundi Amarendran vide TCA No.329 of 2020 order dated 28.9.2020 and the decision of the Delhi Bench of the Tribunal in the case of Amit Bansal vs. ACIT reported in (2019) 174 ITD 349 (Del.), he submitted that the amendment to section 50C(1) introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the value adopted or assessed or assessable by the Stamp Valuation Authority on the date of agreement has to be taken. It is his submission that the provisions of section 50C(1) inserted by the Finance Act, 2016 w.e.f. 1.4.2017 was curative in nature and will apply retrospectively. 9. We find some force in the above argument of the learned Counsel for the assessee. The provisions of section 50C(1) read as under: (1) 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 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 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 that where the date of agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective from the date when the proviso exists. We find the Delhi Bench of the Tribunal in the case of Amit Bansal vs. ACIT (Supra) while deciding an identical issue has observed as under: 7. I have considered the rival submissions and perused the orders of the authorities below. The undisputed facts in the instant case are that the assessee has purchased the ITA No.3974/Del/2018 property jointly with Shri Vikas Bansal on 28th July, 2010 for a consideration of Rs. 39,33,600/- which was sold on 22nd July, 2011 for a net consideration of Rs. 42 lakhs. The assessee had entered into an agreement to sell the property on 25th March, 2011 and taken the part payment of Rs. 10 lakhs. It is also an admitted fact that there is no registered conveyance deed. We find the Assessing Officer, relying on the provisions of section 53A and the provisions of section 2(47)(v) of the IT Act, treated the property as a capital asset and treated the profit from sale of such property as short- term capital gain in the hands of the assessee. Further, the Assessing Officer has also invoked the provisions of section 50C and adopted the circle rate of the property as on 22nd July, 2011 at Rs. 16,000/- per sq. ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consideration in the case of involved property is curative in nature and will apply retrospectively. We find following the above decision, the Ahmedabad Bench of the Tribunal in the case of Rahul G. Patel (Supra), held that the proviso to section 50C(1) introduced by the Finance Act, 2016 can be construed as clarificatory in nature and can be applied on pending matters. The various other decisions relied on by the ld. counsel for the assessee also support the case of the assessee that where the date of the agreement fixing the amount of consideration and the date of registration regarding the transfer of the capital asset in question are not the ITA No.3974/Del/2018 same, the value adopted or assessed or assessable by the stamp valuation authority on the date of the agreement is to be taken for the purpose of full value of consideration. I, therefore, accept the argument of the ld. counsel for the assessee in principle and restore the issue to the file of the Assessing Officer with a direction to verify necessary facts and decide the issue in the light of my above observation directing to adopt the circle rate on the date of agreement to sell in order to compute the consequentia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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