Shri Vinod Kumar Chhate, Jabalpur V. Income Tax Officer, Ward-2 (3), Jabalpur

CO 4/JAB/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5184 (ITAT-JABALPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 26-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Search and seizure; Cost of acquisition; Fair market value; Capital Gains
• Section: 147; 263; 143(3); 50C; 208

Judgement Text

ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR (Through Virtual Hearing) BEFORE SH. SANJAY ARORA, HON’BLE ACCOUNTANT MEMBER & SH. MANOMOHAN DAS, HON’BLE JUDICIAL MEMBER ITA No.134/JAB/2018 Assessment Year:2012-2013 Income Tax Officer, Ward-2(3), Jabalpur. vs. Vinod Kumar Chate, Dhamman Singh Ka Bada, Gorakhpur, Jabalpur. [PAN: ARRPC 6363Q] (Appellant) (Respondent) CO No.4/JAB/2018 (arising out of ITA No.134/JAB/2018) Assessment Year : 2012-2013 Vinod Kumar Chate, Dhamman Singh Ka Bada, Gorakhpur, Jabalpur. [PAN: ARRPC 6363Q] vs. Income Tax Officer, Ward-2(3) Jabalpur. (Cross Objector ) (Respondent) ITA No.60/JAB/2017 Assessment Years:2012-2013 Vinod Kumar Chate, Dhamman Singh Ka Bada, Gorakhpur, Jabalpur. [PAN: ARRPC 6363Q] vs. Pr.CIT-2, Jabalpur. (Appellant) (Respondent) Appellant by Sh. Hemant Modh, Adv. Respondent by Sh. P.K. Mishra, CIT-DR Date of hearing 16/02/2022 Date of pronouncement 01/04/2022 ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 2 ORDER Per Bench The instant appeals arise out of the assessment for assessment year (AY) 2012-13 under section 143(3) read with section 147 (dated 13/11/2014) and u/s. 143(3) r/w s. 263 (dated 29/12/2017) of the Income Tax Act, 1961 (‘the Act’ hereinafter). While both the assessee and the Revenue are in appeal against the latter assessment, i.e., as modified by the first appellate authority, being the Commissioner of Income Tax (Appeals)-1, Jabalpur (‘CIT(A)’ for short), the revision of the former (vide order dated 28/03/2017) is also contested by the assessee before us. The issues arising being common and inter-related, the appeals were heard together, are being adjudicated per a common order. The background facts 2.1 The background facts, as borne out of the record, are that the assessee’s father, Late Shri Murlidhar Chate (‘MC’, hereinafter), entered into an Agreement on 21.8.2005 for sale of 23 (out of 23.5) acres of land at Mauza Nayagaon, Teh. & District Jabalpur, at Rs.4,25,000 per acre, accompanied by a cheque (No.145203, dated 02/01/2005) for Rs.1 lac as advance. Differences arose between the parties soon thereafter, with each side raising claim/s on the other. The buyer, a Jabalpur-based partnership firm by the name M/s. Om Sai Prakash Constructions (OC), filed a suit for specific performance (of the agreement dated 21.8.2005), which was decided by the District Court, Jabalpur, vide its’ Order dated 26/03/2007, dismissing each of the claims by the defendant (MC) and, on his behalf, his only son, the assessee. The Court held the agreement dated 21.8.2005 to be a valid agreement. Vide decree of even date, the parties were directed to execute a sale deed (for 23 acres) at the agreed amount, i.e., Rs.97.75 lacs, being also the suit amount. The court, in so deciding, took note of the fact that the defendant had soon thereafter (i.e., on 17.9.2005) entered into another agreement for the sale of subject land with one, ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 3 Ashok Urmeliya (AU), at Rs.5 lac per acre, i.e., for a total consideration of Rs.115 lacs, receiving Rs.6 lacs upfront, of which Rs. 3 lac was by way of cheque (No. 014600) dated 17.9.2005. The defendant (MC/the assessee) had in fact, till the time of the decree, received a total of Rs.44 lacs under the said agreement. The agreement dated 21.8.2005 being, in it’s view, a valid agreement, no rights clearly arose to the buyer/s under the later agreement dated 17/09/2005. The assessee preferred an appeal (First Appeal No. 303/2007) against the said order before the Hon'ble High Court. Meanwhile, a compromise, tripartite agreement was arrived at i.e., between him, OC, and AU, on 29/08/2010, whereby OC waived its rights over 10.65 acres of the subject land in favour of AU and, further, agreed to enhance the sale consideration from Rs.4.25 lac per acre to Rs.5 lac per acre. This compromise was ratified by the Lok Adalat, Jabalpur (attached to the Hon’ble High Court) on 04/9/2010. 2.2 Sale deed for 11.15 acres was accordingly executed by the assessee (his father having since expired on 16/07/2006, bequeathing him the said land per a registered Will dated 25/6/2006), i.e., as the seller and AU as the buyer, on 13.5.2011, @ Rs. 5 lac per acre (PB pgs. 82-96). Though the sale deed for the balance 11.85 acres between the assessee and the AU is not on record, it is a common ground that the same was also executed during the relevant previous year, and the parties have proceeded on the basis that it has been in terms of the decree, with Shri Modh, the ld. counsel for the assessee, confirming the same on being specifically questioned in its respect during hearing. The assessee thereby transferred 23 acres of land during the relevant previous year for a total of consideration of Rs.115 lacs. As no capital gain stood returned by him u/s. 139, notice u/s. 148(1) was issued and capital gains, returned u/s. 148(1) at Rs. 30,28,821, brought to assessment vide order u/s. 143(3) r/w s. 147 dated 13/11/2014. The same was subject to revision. The Assessing Officer (AO) had, in the view of the Administrative Commissioner, failed to examine the ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 4 applicability of section 50C. In fact, the land had been awarded to the assessee’s father (MC) in 1961 by the State Government, even as the title deed was executed only in 1987. The date of acquisition by him and, thus, the assessee (s. 49), is prior to 1981, so that it is the fair market value (fmv) as on 1.4.1981 that would stand to be substituted instead of the purchase cost of Rs.16.09 lacs, for which sum there was in fact no documentary evidence on record. The capital gains was accordingly directed by him to be assessed afresh after examining the said aspects, and in accordance with law. In the set aside proceedings, the AO adopted the guideline value as the sale consideration, i.e., Rs. 758.44 lacs, as against the returned consideration of Rs. 115 lacs. The assessee failing to adduce any material toward the fair market value (fmv) as on 1.4.1981, the guideline value (as on 01.4.1987) was worked back by him to the year 1981 on the basis of cost inflation index for the relevant years, to arrive at a surrogate fmv as on 01.4.1981, the base year for applying the FMV, at Rs. 10.41 lacs. 2.3 The guideline value for stamp duty purposes was adopted as the deemed sale consideration, i.e., Rs. 758.44 lacs, and capital gains computed accordingly, at Rs. 676.23 lacs. The matter was taken by the assessee before the first appellate authority who, without expressing any opinion on the rival contentions, held that inasmuch as s. 50C provides for adoption of the guideline value as applicable for the year of agreement, i.e., where it is prior to the year of transfer, the same would hold in the instant case, i.e., for fy 2005-06, instead of for fy 2011-12, the relevant previous year. As the agreement dated 17.09.2005 was accompanied by the receipt of part consideration (vide cheque No. 014600 of even date), the condition for the applicability of the amended s. 50C was satisfied. The Revenue contests this on the ground that the amendment brought by Finance Act, 2016 is w.e.f. 01/4/2017, i.e., prospective, providing for the substitution of the guideline value thus AY 2017-18 onwards, so that it would apply to transfer of an eligible capital asset on or after 01/4/2016. The assessee in the meanwhile challenges the sec. 263 order before the Tribunal on the basis ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 5 that s. 50C shall not apply as the sale deed had been executed in pursuance to the court order, binding on it, so that it had no option in the matter. The assessee’s CO is supportive, raising a single Ground for adoption of the Guideline value for f.y. 2005-06 in terms of s. 50C as amended by Finance Act, 2016. 3. We have heard the parties, and perused the material on record. 3.1 The foregoing, i.e., para 2, outlines the controversy attending the instant appeals as well as, broadly, the respective cases of the parties, with the arguments before us being on the same lines. 3.2 At the outset, it is observed that the assessee’s appeal against s.263 order, presented on 5.12.2017, is delayed by a period of 208 days. The condonation application, which is accompanied by an affidavit dated 4.12.2017, read out during hearing, explains the cause of the delay as a change of residence by the assessee-appellant. The same, though, was in the year 2010. Further, the Bench noting that the show cause notice u/s. 263 as well as the impugned order are also made out at the same address, both received in time, with the assessee participating in the revisionary proceedings, it was explained by Shri Modh that the owner of the assessee’s previous residence, Shri Rahangdale, used to convey all the notices to the assessee. However, on his death, there was a disruption in the said communication. Further, it is stated that though the impugned order was received by Shri Modh on 9.5.2017 (though the affidavit is silent on this date, it finds mention in the condonation application), who represented before the revisionary authority, he conveyed the same to the assessee’s old counsel, Shri Anand K. Khemariya, only where-after the assessee contacted Shri Modh on 30.11.2017, i.e., after nearly seven months. The affidavit is deficient on material facts, viz. the reason for the non-communication of change in address, admittedly in 2010, by the assessee to the Revenue, or even after the death of Shri Rahangdale; the date of his death; the long delay in conveying the order to ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 6 Sh. Modh for filing the appeal, etc. The change of residence itself is in 2010, i.e., years earlier. Why, the assessment proceedings, also being attended to by Shri Modh, were on during relevant period, and which were also at the same address. The assessee’s conduct is clearly one of gross, willful negligence, not warranting indulgence, much less exhibits sufficient cause, as required by the Limitation Act, 1963. The reliance is placed on Prasahant Projects Ltd. v. Dy. CIT [2013] 37 taxmann.com 137 (Mum-Trib), even as the case law in the matter is legion. Further, as shall be, nevertheless, presently seen; the facts relevant for deciding the quantum appeals; the entire deliberation; indeed, the delineation of the issues arising for consideration in the matter, has been only in the set-aside proceedings, i.e., pursuant to the revision, justifying it, so that we may also be construed as having considered and upheld it, without prejudice, on merits. 3.3 The first issue, in computing the capital gains on the sale by the assessee of 23 acres of his land, is the cost of acquisition to be adopted. Surely, the land being in his (including his predecessor’s) possession since prior to 1.4.1981, and it was only the formal transfer of title that was completed in 1987, it is the fmv as on 1.4.1981 (Rs. 10.41 lacs) that shall apply, as against the cost of 1987 (Rs.16.09 lacs), for which no basis though has been shown by the assessee. This aspect, pointed out in revision, is not in dispute, with the assessee even conveying his consent to the ld. Pr. CIT in the said proceedings. The cost, upon indexation, amounts to Rs. 81,70,805 and not Rs. 84,20,852, as claimed, so that the assessee had per his return claimed excess cost by Rs. 2,50,047 (84,20,852 - 81,70,805). The difference (Rs.2.50 lacs), though nominal, which is only incidentally so, validates the invocation of s.263. The assessee’s consent is again only incidental as the cost adopted by him was neither enquired into in assessment nor, consequently, substantiated. The consent by the assessee was itself given in the s.263 proceeding, so that relying thereon, even as he challenges the said proceedings, is itself anomalous. The consent is even otherwise irrelevant inasmuch as there is no estopple against law. Further, the ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 7 enquiry into cost only follows that into the manner and year of acquisition in the s.263 proceedings. Lack of enquiry, as explained by the Apex Court in Malabar Industrial Co. Ltd. vs. CIT [2000] 243 ITR 83 (SC) is per se a sufficient ground for assuming jurisdiction u/s. 263 (also see: CIT vs. Deepak Kumar Garg [2008] 299 ITR 435 (MP); Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Del)). 3.4 The next aspect with which the revision order concerns itself is the applicability of s.50C, which is also the subject matter of the quantum appeals. The assessee’s case u/s. 263, as indeed in the quantum proceedings, is that inasmuch as it was bound by the verdict of the Hon'ble High Court, s.50C shall not apply. The Revenue’s stand is that there has been no adjudication by the Hon'ble Court, which has only endorsed the compromise arrived at by and between the parties whereby the agreement dated 21.8.2005 between the assessee and the first proposed buyer (OC) stands ‘modified’ so as to include another and, two, enhance the sale price (through mutual consent) to Rs. 5 lacs per acre (for the entire land). The premise of the assessee’s case is of he being bound by the court order. The argument may hold only where the High Court had opined on the fair market value of the subject land, which is the subject matter of s. 50C. The suit filed, which was by the first buyer, i.e., OC, was only for the specific performance of the agreement dated 21.8.2005, which was held as maintainable by the Court vide Judgment dated 26.3.2007. And against which appeal was in fact preferred by the assessee-respondent before the Hon'ble High Court. However, as by then he had entered into another agreement (on 17.9.2005) and in fact received Rs.44 lacs thereunder from the second proposed buyer, a tripartite compromise was arrived at on 29.8.2010 whereby OC relinquished its’ rights in 10.65 (out of 23) acres of land (PB pgs. 69-71). And which would accrue to the second buyer, AU, both of whom would pay the assessee-seller @ Rs.5 lac per acre. It is this compromise that was ratified by the Lok Adalat (on the assessee moving an application under Order 23 Rule 3 of the C.P.C., 1908), ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 8 modifying the original decree dated 26.3.2007 to that extent vide its’ directions dated 4.9.2010, on which aspect of the matter there is again no dispute. That is, it is only the original agreement dated 21.8.2005 which stands to be, in effect, executed. The Court has only endorsed the same, i.e., with the modifications as again agreed to by and between the parties themselves. And which itself came into being on the assessee refusing to honor his obligations under a valid sale agreement, necessitating the buyer to seek specific performance. Though the Hon’ble Court (Lok Adalat) mandates an additional buyer and a higher rate, it has thereby only endorsed the said modifications, agreed to by the parties by way of a compromise arrangement. How could that have any bearing on the applicability of s. 50C, which contains no exception where, for any reason, there is a delay in the execution of the transfer instrument, i.e., beyond the date envisaged for the transfer of a capital asset in the agreement, so that the two dates, i.e., the date as per the agreement and of the actual transfer, fall in different fiscal years. The second limb of the assessee’s argument, though not articulated, is that the agreement (dated 21.8.2005) having been sub judice, its genuineness, including as to the sale consideration stated therein, could not be doubted. We are unable to on the basis of the clear language of s. 50-C, draw any distinction between a genuine or a non-genuine agreement, or, those whose genuineness can be doubted and others. Rather, a non-genuine agreement, where so, has no sanctity in law, and any benefit there-under cannot be availed of under law. This is particularly so as the subject matter of s.50C is the transfer consideration (for the purpose of computing capital gains u/s. 48) and, inasmuch as it deems the same by adopting the value declared or assessed by the State for the purpose of levy of stamp duty on the transfer of immovable property, it fairly provides for a mechanism for an assessee to contest the said adoption in his case. This is even as the stamp valuation itself is guided by the consideration of fmv of the relevant property, making the provision complete and legally firm. It is for this ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 9 reason that we stated the argument advanced by and on assessee’s behalf to be flawed, both in law and on facts. To conclude, s.50C is clearly applicable, and which forms another reason for upholding the revision. 3.5 The next question that arises is if the amendment to s. 50C by way of first and second provisos thereto, by Finance Act, 2016, w.e.f. 1.4.2017, is prospective or retrospective. The ld. CIT(A) has applied the amended law without discussing this aspect of the matter; the year under appeal being AY 2012-13, and which explains the Revenue’ appeal. The assessee finds fault with it by claiming the adoption of the agreement value, i.e., Rs.5 lac per acre, and which we have already answered in the negative by holding that s. 50C shall apply. The section, as originally cast, did not contemplate a situation where the transfer of an immovable property (IP) is not accompanied by, for any reason, execution of transfer deed. This led to an anomaly inasmuch as for such transfers it is only the stated consideration that would hold. This was met by adding the words ‘or assessable’ after the word ‘assessed’ in s. 50C(1) by Finance (No.2) Act, 2009, w.e.f. 01/10/2009, so that the stamp valuation as would have been applicable in respect of the transfer would get substituted as the deemed consideration. This amendment, made clearly to overcome an unintended consequence of a category of transfers, falling in the same class, escaping s.50C which seeks to provide a uniform basis for all transfers of IPs, was held as clarificatory and, thus, retrospective, by Hon'ble Calcutta High Court in Bagri Impex (P.) Ltd. v. Asst. CIT [2013] 214 Taxman 305 (Cal). The amendment by Finance Act, 2016 falls in the same series. That is, to cure the hardship caused by the transfer not taking place in the year of the (transfer) agreement fixing the value of the transfer. The same, therefore, is, to our mind, also retrospective, even as held by the Tribunal in Hansaben Bhaulabhai Prajapati vs. ITO (in ITA No. 2412/Ahbd/2016, dated 31.10.2017 / PB pgs. 128- 135), relied upon by the assessee. This gets also supported by the stipulation of the Agreement being accompanied or preceded by receipt of consideration, or ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 10 part thereof, by cheque or electronically – which is clearly to eschew back-dated documents. We, thus, have no doubt that the amendment by Finance Act, 2016 is retrospective, and that s.50C shall apply. 3.6 The next question in the matter that arises is if the conditions for the applicability of the amended s.50C are met? This assumes relevance as the agreement dated 21.8.2005, which stands upheld by the competent court, and actually executed and given effect to, albeit as ‘modified’ (through a compromise agreement), cannot be said to be accompanied by receipt of consideration to any extent, much less by cheque, which was returned by MC, the seller. The said stipulation, as afore-stated, stands incorporated only to avoid ante-dating of agreements. In the instant case, it is not in dispute that the agreement was accompanied by delivery of cheque of even date (21.8.2005) for Rs.1 lac. The non-presentation of cheque by him (assessee’s father) was clearly for the reason that he wanted to resile from his obligation under the contract, and was, as it transpires, engaged in bargaining a better price for his land, and which resulted in an agreement dated 17.9.2005, accompanied by receipt of Rs.6 lacs, of which Rs.3 lacs was by cheque dated 17.9.2005. The chq. dated 21/8/2005 for Rs. 1 lac, though returned, was not accepted by the buyer (OC) (refer para 42 of the Judgment dated 26/03/2007 / PB pgs. 35-68). The said narration of facts leaves one in no manner of any doubt that the agreement dated 21.8.2005 was entered into at the relevant time. The requirement of the second proviso to s.50C is, in our view, under the facts and circumstances, met. This is as, in view of the peculiar facts, a purposive interpretation, consistent with the object and intent of the statute, i.e., to accord credence to extant transactions, obtain. Support is drawn from the decision in Sanjeev Lal v. CIT [2014] 365 ITR 389 (SC), wherein the Apex Court, relying on the decision in Oxford University Press v. CIT [2001] 247 ITR 658 (SC), held that though equity and tax are strangers, a harmonious construction, which sub-serves the object and purpose of the provision, should be made, particularly where one is ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 11 concerned with an exemption provision. Though section 50C cannot be regarded as an exemption provision, i.e., as s.54, which was involved in that case, the two provisos to the provision, inserted by Finance Act, 2016, are toward mitigating the rigor of the provision, and in that sense, benevolent. The agreement dated 21.8.2005, thus, though not accompanied or preceded by receipt of any transfer consideration by the assessee, would qualify to be regarded as a valid agreement for the purpose of s. 50C and, thus, s. 48. Rather, inasmuch as the of sale consideration stipulated per the August, 2005 (first) agreement, as indeed the agreement itself, obtains no longer, the question that would arise is whether it is the guideline value of August, 2010 that would hold, or that of August, 2005? This is as the original agreement stands ‘modified’ in 2010, and what the amended s. 50C clearly provides is for freezing the deemed consideration at the guideline value obtaining at the time of the agreement where it is accompanied (or preceded) by receipt of consideration by cheque or electronically, to any extent, and which stipulation is clearly to ensure admission of only contemporaneous and, of course, valid transactions. True, the compromise agreement (of August, 2010) substitutes that of August, 2005, which therefore need not be performed (s. 62 of the Indian Contract Act, 1872). The parties have, however, thereby only recognized the pre-existing rights of the parties inter se, adopting the sale consideration per another agreement dated 17/9/2005. Sure, the said agreement, having been entered into by way of misrepresentation inasmuch as assessee did not reveal the fact of his having already agreed to sell the subject land to another on 21/8/2005, is not enforceable in law and, accordingly, not considered by the Court in it’s Judgment dated 26/3/2007. So, however, the subject matter of s. 50C is, as afore-noted, only with reference to the value to the ascribed to the transfer for the purpose of computing capital gains arising u/s. 45. And, there is no doubt of the same having been entered into in September, 2005, for a sale consideration of Rs. 5 lac per acre, receiving Rs. 3 lacs by cheque on the date of agreement ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 12 itself. As such, the guidelines value (stamp valuation) of September, 2005 can, in our view, be validly adopted in the instant case for the purpose of s. 50C(1). Support for the same is drawn from the decision in Sanjeev Lal (supra). We are also conscious that AU, one the parties to the compromise agreement, is not a party to the original agreement dated 21/8/2005. This, again, in our view have no bearing in the matter inasmuch as we have already stated that the said agreement stands substituted and, accordingly, need not be acted upon. The issue before us is not with reference to the identity of the buyer/s, but the value to be, in view of s. 50C, adopted for the purposes of s.48 in computing capital gains. 3.7 Shri Modh would during hearing raise an objection, stating that inasmuch as a reference to Valuation Officer (VO) had been sought during assessment proceedings, and indeed made by the AO, it is the agreed sale consideration, and not the guideline value for f.y. 2005-06, that would apply. True, s.50C, which we have held as applicable in the instant case, provides a leeway under sub-section (2) thereof, where the assessee claims that the value u/s. 50C(1), i.e., the guideline value in it’s case as on the date of transfer, exceeds the fair market value as on that date. The reference sought by the AO was for fmv as on 01.04.1981 and 28.10.2011, the date of transfer. The former is not contested, and latter, not relevant, as the ld. CIT(A) has directed for adoption of guideline value for fy 2005-06. In fact, the assessee’s representation dated 8.12.2007 to the VO (PB pgs. 108-109) reads as under in the relevant part: ‘12. That the guide line value for applicability of sec. 50C is applicable for the financial year 2005-06 in which year the agreement was executed and first payment were received by cheque No.014600 dated 17/09/2005, therefore the variation in value of transaction and value as per sec. 50C is not applicable to the Assessee as the Sub- Registrar has registered the documents in the financial year 2011-12.’ That apart, this is exactly what the assessee claims per his CO, the sole ground of which reads as under: ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 13 ‘1. That the ld. CIT(A) has rightly directed to apply the guidelines rates of the stamp duty authority for the Financial Year 2005-06 by following the case of Hansaben Bhaulabhai Prajapati vs. ITO, Ward-3(2)(2), Ahmedabad.’ The controversy being now sought to be raised by Shri Modh is, we are afraid, without basis on facts and, thus, to no moment. We are conscious, when we hold so, that the provision as it reads provides for reference to the VO in case of claim of the guideline value being in excess of the fmv as on the date of transfer, which in the instant case continues to be 28.10.2011, and not the date of the Agreement. That, however, makes the provision incoherent and internally inconsistent. When the guideline value as on the date of agreement substitutes that on the date of transfer, it is this value that would in a given case be liable to be disputed before the VO. There is nothing in the proviso to suggest restricting the exception only to cases governed by proviso to s.50C(1), and s.50C(2) is without prejudice to the entire s.50C(1). 3.8 In sum The assessee’s challenge to the revisionary proceedings fails for being barred by time and, besides, is, even on merits, misconceived. As apparent from the facts discovered and found in the set-aside proceedings, as well as issues arising qua the applicability or otherwise of s.50C, discussed in detail in the instant order, prove the assessment subject to revision as being a clear case of non-application of mind by the assessing authority. The assessee’s case on quantum, which is the same as found acceptance by the assessing authority at the time of the earlier assessment, is, in the main, that he was bound by the court order, which overlooks the fact that the court has only endorsed the agreement entered into by him and, two, the argument would be valid where the court had opined on the fmv – which is the subject matter of s. 50C, of the subject land. The suit filed (by the buyer) was in fact only for the specific performance of the said agreement, found valid by the court per its’ Judgment dated 26/3/2007. The Revenue’s case as to the prospective nature of the ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 14 amendment by Finance Act, 2016 to s. 50C, held applicable by the first appellate authority, does not find our approval in view of the same being curative, i.e., toward mitigating a hardship and, in fact, in the same series as the earlier amendment by Finance (No. 2) Act, 2009, found retrospective in nature by the Hon'ble Courts. Further, though the sale agreements dated 21/8/2005 and 17/9/2005, entered into with the two buyers (with whom compromise stands arrived at) on the respective dates, accompanied by payment of part consideration by cheque, stand substituted by another in August, 2010, duly endorsed by the court, inasmuch as it is only in continuation thereof, are found to be relevant agreements for the purpose of s. 50C, i.e., irrespective of their status under the law of contract, which may not, we though clarify, be construed as giving rise to any general proposition in law. The condition/s of the amended s. 50C(1) are thus found to be, in the facts and circumstances of the case, substantially met. As explained in Shri Sajjan Mills Ltd. v. CIT [1985] 156 ITR 585 (SC), the rule of strict interpretation does not rule out the applicability of reasonable construction to give effect to the purpose or intent of the provision. The assessee’s CO is supportive. The reference to the VO, sought initially by the assessee, stands abandoned in view of the stamp valuation as on the date of agreement, as against the date of transfer, having found acceptance in first appeal, which we have upheld. The AO shall, in computing the capital gains u/s. 48 on the subject land – the cost of acquisition of which stands agreed to at Rs. 81,70,805, in case he has not already done so in compliance with the directions vide the impugned order, adopt the stamp valuation as of September, 2005 as its’ deemed sale consideration. Further, inasmuch as the sale deed in favour of OC was, despite being called for during hearing, not produced and, further, the assessee’s Application u/o 23, r. 3 of CPC, 1908 (in IA No. 9917/10, dated 29/8/2010) before the Hon’ble High Court is for 12.35 (and not 11.85) acres (see para 2.2) in favour of OC (PB pgs. 69-71), making for sale at a total of 23.5 (instead of 23) acres of ITA No. 134 & CO 4/Jab/2018, ITA 60/Jab/2017 Vinod Kumar Chate (Asst. Yr. 2012-13) 15 his land during the year, the AO shall bring the capital gains to tax accordingly. As explained by the Apex Court in CIT v. Walchand & Co. (P.) Ltd. [1967] 65 ITR 381 (SC), the Tribunal shall deal with and determine questions which arise out of the subject matter of the appeal in the light of the evidence, and consistently with the justice of the case. We decide accordingly. 4. In the result: a). the assessee’s appeal (in ITA No. 60/Jab/2017) is dismissed as not maintainable and, in any case, liable to be dismissed; b). the Revenue’s appeal (in ITA 134/Jab/2018) is dismissed, and the assessee’s CO (No. 4/2018) is allowed. Order pronounced in the open court on April 01, 2022 Sd/- sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 01/04/2022 Aks/- Copy of the Order forwarded to: 1. The Appellant: Shri Vinod Kumar Chate, Dhamman Singh Ka Bada, Gorakhpur, Jabalpur (M.P) 2. The Respondent: Income Tax Officer, Ward-2(3), Jabalpur, 2 nd Floor, Annexe Building, Napier Town, Jabalpur (M.P) 3. The Principal CIT-2, Jabalpur 4. The CIT (Appeals)-1, Jabalpur 5. The Senior DR, ITAT, Jabalpur 6. Guard File