Dinar Umeshkumar More, Nashik V. Income-tax Officer,

ITA 1503/PUN/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6297 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-03-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 18-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: EMANATES FROM PASSED
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment; Cost of acquisition; Fair market value; Block assessment
• Section: 43CA; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER . / ITA NO.1503/PUN/2015 / ASSESSMENT YEAR : 2011-12 SHRI DINAR UMESHKUMAR MORE, MORE ACCIDENT HOSPITAL, NEAR REST HOUSE, BEHIND KANKRIA NIWAS, CAMP ROAD, MALEGAON, DIST. NASHIK PAN : AFIPM3316E VS. ITO, WARD-3(3), MALEGAON (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE EMANATES FROM THE ORDER PASS ED BY THE CIT(A) ON 07-09-2015 IN RELATION TO THE ASSESSMENT Y EAR 2011-12. 2. SOME DETAILED AND ARGUMENTATIVE GROUNDS WERE RAISED IN THE MEMORANDUM OF APPEAL. THEREAFTER, THE ASSESSEE FILED CO NCISE AND APPELLANT BY SHRI SANKET M. JOSHI RESPONDENT BY SHRI PANKAJ GARG DATE OF HEARING 23-01-2019 DATE OF PRONOUNCEMENT 25-01-2019 ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 2 MODIFIED GROUNDS, CHALLENGING THE IMPUGNED ORDER ON CERTA IN ISSUES, WHICH WE WILL ESPOUSE FOR DISCUSSION AND DECISION. 3. SUCCINCTLY, FACTUAL MATRIX OF THE CASE, AS RECORDED IN TH E ASSESSMENT ORDER, IS THAT THE ASSESSEE ALONG WITH HIS SISTER AND WIFE EXECUTED A DEED OF CONVEYANCE ON 28-07-2010 WITH M/S. J AYESH BUILDERS, A PARTNERSHIP FIRM IN RESPECT OF PROPERTY ADMEASU RING 429 SQ. MTRS ALONG WITH THE BUILDING STANDING THEREON, KNOWN AS `SAI CHHAYA AT VILLAGE VILLAE PARLE IN MUMBAI FOR A TOTAL MONETARY CONSIDERATION OF RS.51 LAKH AND 2 FLATS ADMEASURING 900 SQ.FT. IN THE NEW BUILDING TO BE CONSTRUCTED ON THE SAID PLOT. ONE OF SUCH FLATS ADMEASURING 405 SQ.FT. WAS TO BE GIVEN TO SHRI UDAY VA SANT SHINDE AND HIS RELATIVE, THE HITHERTO OCCUPANTS AND CONSENTIN G PARTIES, WHILE THE SECOND FLAT ADMEASURING 495 SQ.FT. WAS TO BE RETAINED BY THE ASSESSEE AND HIS SISTER. MARKET VALUE OF THE PROPERTY TRANSFERRED UNDER THE DEED AMOUNTED TO RS.1,86, 32,000/- ON WHICH APPROPRIATE STAMP DUTY WAS PAID. ON BEING CALLED U PON TO EXPLAIN THE REASONS FOR NOT DECLARING CAPITAL GAIN ARISING O UT OF THIS TRANSACTION, THE ASSESSEE SUBMITTED THAT THE PROPERTY WAS ORIGINALLY ACQUIRED BY DR. RAMCHANDRA KRISHNA MORE PRIOR TO THE YEAR 1972. AFTER HIS DEATH, THE PROPERTY DEVOLVED TO SMT. USHA UMESHKUMAR MORE. AFTER HER DEATH, THE PROPERTY DEVOLVED TO THE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 3 ASSESSEE AND THE MEMBERS OF HIS FAMILY. THE ASSESSEE EXPLAINED THAT HIS MOTHER SMT. UMA UMESH KUMAR MORE SOLD THE PROPERTY TO M/S JAYESH BUILDERS BY A REGISTERED DEVELOPMENT AGREEMENT DATED 31-05-2002 AND HANDED OVER THE POSSESSION TO THE SAID BUILDER BY ISSUING A GENERAL POWER OF ATTORNEY ON 27-09-20 02. THE BUILDER DEMOLISHED `SAI CHHAYA FOR CONSTRUCTING A NEW BUILDING. AFTER THE DEATH OF SMT. UMA UMESH KUMAR MORE, THE ASSESSEE STATED THAT HE ALONG WITH HIS SISTER COMPLETED THE LEGA L PROCEDURE. THOUGH THE ASSESSEE INITIALLY TOOK A STAND BEF ORE THE AO THAT `SAI CHHAYA BELONGED TO HUF, BUT, LATER ON, IT WAS DROPPED AND THE ASSESSEE ADMITTED THAT THIS PROPERTY BELONGE D TO HIM ALONE AND NOT THE HUF. THE ASSESSEE ALSO SUBMITTED THAT THE TRANSFER OF PROPERTY TOOK PLACE ON 31-05-2002 ON EXECUTIO N OF THE REGISTERED DEVELOPMENT AGREEMENT AND HENCE, THE AMOUNT OF CAPITAL GAIN, IF ANY, OUGHT TO HAVE BEEN CHARGED TO TAX IN THE PREVIOUS YEAR RELEVANT TO THE A.Y. 2003-04 AND NOT THE YEA R UNDER CONSIDERATION. THE AO REJECTED THE ABOVE CONTENTIONS BY HOLD ING THAT THE AMOUNT OF CAPITAL GAIN WAS CHARGEABLE TO TAX IN THE HAN DS OF THE ASSESSEE ALONE AND NOT THE HUF AND FURTHER THAT THE AGREEMENT MADE ON 31-05-2002 WAS ONLY FOR DEVELOPMENT A ND NOT OUTRIGHT SALE, WHICH EVENT ACTUALLY TOOK PLACE ON 27-08-2010 , ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 4 WHEN THE CONVEYANCE DEED WAS EXECUTED BETWEEN THE ASSE SSEE, THE BUILDER AND OTHERS. IN THIS BACKDROP OF FACTS, THE AO HELD THAT THE ASSESSEE ACTUALLY TRANSFERRED HIS FLATS IN `SAI CHHAYA O N 27-08- 2010 WHEN THE OWNERSHIP RIGHTS IN THE PROPERTY GOT TRANSFE RRED. THAT IS HOW, HE COMPUTED THE LONG TERM CAPITAL GAIN AT RS.1,74,39,625/- BY TAKING FULL VALUE OF CONSIDERATION AS P ER STAMP VALUATION AUTHORITIES AT RS.1,86,32,000/- AND REDUCING IT WITH THE INDEXED COST OF ACQUISITION AT RS.11,92,375/-. THE ASSESS EE REMAINED UNSUCCESSFUL BEFORE THE LD. CIT(A) AGAINST WHICH THE ASSESSEE HAS APPROACHED THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RE LEVANT MATERIAL ON RECORD. CERTAIN FACTS WHICH ARE NOT DISPUTED AR E THAT THE SMT. UMA UMESH KUMAR MORE, MOTHER OF THE ASSESSEE, ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S. JAYESH BUILDERS ON 31-05-2002 TRANSFERRING DEVELOPMENT RIGHTS IN `SAI CHHAYA , A COPY OF WHICH IS AVAILABLE AT PAGE 17 ONWARDS OF THE PAPE R BOOK. AS PER CLAUSE (VII) OF THIS AGREEMENT, SHE WAS OCCUPYIN G TWO FLATS WITH TOTAL CARPER AREA OF 898 SQ.FT. ON FIRST FLOOR OF SAI CHHAYA BUILDING. ANNEXURE NO. 1 TO THE AGREEMENT, A COPY OF WHICH IS PLACED ON PAGE 28 OF THE PAPER BOOK, SHOWS TWO FLATS AT SL. NO.5 WITH THE NARRATION OWNERS OCCUPIED HAVING CARPET AREA OF 429.50 ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 5 SQ.FT. AND 469.43 SQ.FT. TOTAL 898.48 SQ.FT. AS PER THIS D EVELOPMENT AGREEMENT, THE DEVELOPER AGREED TO DISCHARGE THE MONETARY CONSIDERATION OF RS.30 LAKH PLUS TWO FLATS IN THE PROPOSED BU ILDING TO BE CONSTRUCTED ON THE SAME PROPERTY HAVING TOTAL CARPET AR EA ADMEASURING APPROXIMATELY 900 SQ.FT. IN THE MEANTIME, ONE SHRI VASANAT SHIVRAM SHINDE FILED A PETITION IN THE HONBLE COURT CONTENDING THAT FLAT 5A SITUATED AT `SAI CHHAYA OF VILLAE PAR LE, MUMBAI WAS IN HIS POSSESSION FOR LAST SEVERAL YEARS AS THE SAID BUILDING WAS CONSTRUCTED BY THE DECEASED FATHER OF SMT. US HA SHINDE, WIFE OF THE PETITIONER. HE CLAIMED TO BE IN POSSESS ION OF SUCH A FLAT AND URGED THAT THE TRANSFER OF HIS FLAT BY THE AS SESSEE AND HIS FAMILY TO M/S. JAYESH BUILDERS WAS ILLEGAL AND VOID. AFTER PROTRACTED LITIGATION BETWEEN SHRI SHINDE AND FAMILY OF THE ASSESSEE, EVENTUALLY, A CONSENT DECREE WAS PASSED BY T HE HONBLE BOMBAY HIGH COURT IN JUNE 2010, A COPY OF WHICH IS AVAILAB LE ON RECORD. AS PER THE SAID DECREE, THE ASSESSEE AGREED T HAT ONE FLAT ADMEASURING 405 SQ.FT. CARPET AREA BE ALLOTTED TO SHRI SHINDE, OUT OF TWO FLATS HAVING TOTAL CARPET AREA OF APPROXIMATELY 900 S Q.FT. WHICH WERE TO BE ALLOTTED TO HIM IN THE NEW BUILDING. THERE W AS SOME REVISION IN THE MONETARY CONSIDERATION TO BE PAID ALSO FR OM THE ORIGINALLY AGREED AMOUNT OF RS.30 LAKH IN 2002 TO RS.51 LAKH. ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 6 AFTER THIS CONSENT DECREE, A REGISTERED CONVEYANCE DEED D ATED 28-07-2010 WAS EXECUTED, A COPY OF WHICH IS AVAILABLE ON RECORD. AS PER SUCH CONVEYANCE DEED, SHRI SHINDE WAS ALLOTTED A F LAT WITH 405SQ.FT. CARPET AREA AND THE ASSESSEE WAS ALSO ALLOTTED ON E FLAT WITH 495 SQ.FT. CARPET AREA AND MONETARY CONSIDERATION OF RS.51 LAKH. 5. ONE OF THE ISSUES RAISED BY THE ASSESSEE BEFORE THE A UTHORITIES BELOW WAS THAT THE TRANSFER OF PROPERTY TOOK PLACE ON 31-05 -2002 ON THE EXECUTION OF THE DEVELOPMENT AGREEMENT AND HENCE, NO CAPITAL GAIN SHOULD BE CHARGED TO TAX IN THE YEAR UNDER CONSIDERATION. THE AUTHORITIES BELOW REPELLED THIS CONTENTION. THOUGH A GROUND TO THIS EFFECT HAS BEEN TAKEN BEFORE THE TRIBUNAL, BUT THE LD. AR DID NOT PRESS THE SAME AND CONCEDED THAT THE TRANSFER SHOULD BE CONSIDERED ON THE EXECUTION OF THE REGIS TERED CONVEYANCE DEED ON 28-07-2010, WHICH IS RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE IMPUGNED ORDER IS, ERGO, UPHELD TO THIS EXTENT. 6. NEXT DISPUTE RAISED BY THE ASSESSEE IS ON DETERMINATION O F THE FULL VALUE OF CONSIDERATION IN COMPUTATION OF LONG TERM CAPITAL GAIN. THE AO ADOPTED STAMP VALUE OF THE PROPERTY ON THE DATE OF ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 7 EXECUTION OF REGISTERED CONVEYANCE DEED, NAMELY, 28-07 -2010 AS FULL VALUE OF CONSIDERATION. CONTENTION OF THE ASSESSEE BEF ORE US IS THAT THE STAMP VALUE SHOULD BE CONSIDERED WITH REFERENCE TO THE DATE ON WHICH THE DEVELOPMENT AGREEMENT WAS SIGNED AND POSSESSION OF `SAI CHHAYA WAS HANDED OVER TO M/S JAYESH BUILDERS ON 31-05-2002. TO SUPPORT SUCH CONTENTION, THE LD. AR RELIED ON FIRST TWO PROVISOS TO SECTION 50C OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT). 7. SECTION 48 OF THE ACT DEALS WITH COMPUTATION OF INCOME UN DER THE HEAD `CAPITAL GAINS. IT PROVIDES THAT THE INCOME CHARGE ABLE UNDER THIS HEAD `SHALL BE COMPUTED, BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET, THE FOLLOWING AMOUNTS, NAMELY , (I) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER AND (II) COST OF ACQUISITION OF THE ASSET AND COST OF ANY IMPROVEMENT THERETO. SECOND PROVISO TO THIS SECTION STATES TH AT WHERE LONG TERM CAPITAL GAIN ARISES IN CERTAIN SPECIFIED SITUATION S, THE WORDS, COST OF ACQUISITION AND COST OF IMPROVEMENT USED IN THE MAIN PART OF THE PROVISION WOULD BE SUBSTITUTED WITH THE WO RDS INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEM ENT. SECTION 50C IS A SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 8 CERTAIN CASES. FOR READY REFERENCE, WE ARE REPRODUCING SUB-SECTION (1) OF SECTION 50C, AS UNDER : - ` WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A R ESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR B UILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSES SABLE 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 OR ASSESSABLE SHALL, FOR THE PU RPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERA TION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER : PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMOUNT O F 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 MAY BE TAKEN FOR THE PURPOSES OF COMPUTING FULL VALUE OF CONSIDERATION FOR SUCH TRANSFER: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION, OR A PART THEREO F , HAS BEEN RECEIVED BY WAY OF AN ACCOUNT PAYEE CHEQUE OR ACCOU NT PAYEE BANK DRAFT OR BY USE OF ELECTRONIC CLEARING SYSTEM THROU GH A BANK ACCOUNT, ON OR BEFORE THE DATE OF THE AGREEMENT FOR TRANSFER. 8. ON READING SECTION 48 IN JUXTAPOSITION TO SECTION 50C, IT EMERGES THAT ORDINARILY, FULL VALUE OF CONSIDERATION OF LAND O R BUILDING ETC. IS THE AMOUNT ACTUALLY RECEIVED OR ACCRUING TO THE ASSESSEE AS A RESULT OF TRANSFER. IF HOWEVER, SUCH A C ONSIDERATION IS LESS THAN THE STAMP VALUE OF THE LAND OR BUILDING ETC. ON THE DATE OF TRANSFER, THEN THE STAMP VALUE IS DEEMED AS THE FULL VALUE OF CONSIDERATION. TO PUT IT SIMPLY, IF ACTUAL SALE CONSIDERATION, FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN U/S 48, IS MORE THAN TH E ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 9 STAMP VALUE, THEN CAPITAL GAIN SHOULD BE COMPUTED BY TAKING S ALE CONSIDERATION AS FULL VALUE OF CONSIDERATION. IN CASE THE AM OUNT OF SALE CONSIDERATION IS LESS, THE STAMP VALUE SUBSTITUTES ACTUAL CONSIDERATION RECEIVED OR ACCRUING. THERE IS NO DISPUTE ON SUCH A PROPOSITION. 9. THE CONTROVERSY IS WITH REFERENCE TO THE ABOVE EXTRA CTED TWO PROVISOS TO SECTION 50C(1), WHICH HAVE BEEN INSERTED BY TH E FINANCE ACT, 2016 W.E.F. 01-04-2017. EFFECT OF THE FIRS T PROVISO IS THAT WHEN THE DATE OF AGREEMENT FIXING THE AMOUNT OF CONSIDER ATION AND THE DATE OF ACTUAL REGISTRATION FOR THE TRANSFER OF CAPITAL ASSET ARE NOT THE SAME, THE VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY ON THE DATE OF AGREEMENT MAY BE TAKEN FOR THE PUR POSE OF COMPUTING FULL VALUE OF CONSIDERATION OF SUCH TRANSFER. IT C AN BE UNDERSTOOD WITH A SIMPLE ILLUSTRATION. IF THE AGREEMENT FOR TRA NSFER OF PROPERTY IS EXECUTED, SAY, IN YEAR ONE AND ACTUAL TRANS FER TAKES PLACE, SAY IN YEAR THREE, THEN FOR THE PURPOSE OF COMPUTA TION OF CAPITAL GAIN AT THE TIME OF TRANSFER IN YEAR THREE, FULL VALUE OF CONSIDERATION IN TERMS OF SECTION 50C SHOULD BE COMPUTED WITH REFERENCE TO THE STAMP VALUE OF THE PROPERTY ON THE DATE O F AGREEMENT IN YEAR ONE. THIS PROVISO HAS BEEN ENACTED TO RATIONALIZE THE PROVISIONS OF SECTION 50C IN A CASE WHERE AGREEMENT TO SELL THE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 10 PROPERTY IS EXECUTED MUCH BEFORE THE ACTUAL DATE OF TRANSFE R AND THE SALE CONSIDERATION OR ITS PART IS ALSO RECEIVED PURSUANT TO SU CH AN AGREEMENT. IN SUCH A SITUATION, THE STAMP VALUE OF THE PR OPERTY FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN, SHOULD BE CONSID ERED AS IS RELEVANT ON THE DATE OF AGREEMENT AND NOT THE DATE O F EXECUTION OF REGISTERED SALE DEED. IT IS QUITE LOGICAL ALSO. ONCE AN AGREEMENT IS ENTERED INTO BETWEEN TWO PARTIES FOR TRANSFERRING A PARTICULAR PROPERTY AND CERTAIN AMOUNT IS ALSO RECEIVED, THE TRANSACTION SHOULD BE CONSIDERED TO HAVE BEEN LOCKED ON SU CH A DATE WITH REFERENCE TO ITS MARKET VALUE PREVAILING ON THAT DATE. IF THE TRANSFER BY A REGISTERED SALE DEED IS DELAYED FOR SOME REASON AND IT ACTUALLY TAKES PLACE IN A LATER YEAR AND THE STAMP VALUE ON SUCH A LATER DATE IS ADOPTED, IT WOULD NOT REFLECT THE TRUE FAIR MARKET VALUE OF THE PROPERTY, WHICH, FOR ALL PRACTICAL PURPOSES, WA S ACTUALLY AGREED TO BE TRANSFERRED ON AN EARLIER DATE OF EN TERING INTO AGREEMENT TO SELL WITH REFERENCE TO THE PREVAILING MARKET PRICE ON THAT DATE. 10. HOWEVER, TO AVOID MISUSE OF THIS BENEFICIAL PROVISIO N, SECOND PROVISO TO SECTION 50C(1) CATEGORICALLY PROVIDES THAT THE FIRST PROVISO SHALL APPLY ONLY WHEN THE AMOUNT OF CONSIDERATION OR PART THERETO WAS RECEIVED THROUGH BANKING CHANNEL ON OR BEFOR E THE DATE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 11 OF AGREEMENT FOR TRANSFER . IN ORDER TO CIRCUMVENT A S ITUATION OF THE PARTIES TO A TRANSACTION OF TRANSFER OF LAND OR BUILDING ETC. TRYING TO DRAW AN UNWARRANTED ADVANTAGE OF THE FIRST PROVISO BY FALS ELY SHOWING AN AGREEMENT TO SELL OF A DATE ANTERIOR TO THE DATE OF EXECUTION OF REGISTERED DEED, WHICH ACTUALLY DID NOT EXIST, THE PARLIAMENT SIMULTANEOUSLY ENACTED THE SECOND PROVISO TO ENSU RE THAT THE BENEFIT OF THE FIRST PROVISO WOULD PERCOLATE ONLY IN GE NUINE CASES AND NOT OTHERWISE. IT PROVIDED THAT THE BENEFIT OF THE F IRST PROVISO SHALL BE AVAILABLE ONLY IF THE AMOUNT OF CONSIDERATION OR PART THERETO WAS ACTUALLY RECEIVED BY THE ASSESSEE, THROUGH BANKING CHANNEL, AT THE TIME OF ENTERING INTO AGREEMENT TO SELL. 11. THESE TWO PROVISOS HAVE BEEN INSERTED BY THE FINANCE ACT, 2016 W.E.F. 01-04-2017. MEMORANDUM EXPLAINING THE PROV ISIONS OF THE FINANCE BILL, 2016, STATES IN THIS REGARD AS UNDER :- `UNDER THE EXISTING PROVISIONS CONTAINED IN SECTION 50C, IN CASE OF TRANSFER OF A CAPITAL ASSET BEING LAND OR BUILDING ON BOTH, THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORIT Y FOR THE PURPOSE OF PAYMENT OF STAMP DUTY SHALL BE TAKEN AS THE FULL VALUE OF CONSIDERATION FOR THE PURPOSES OF COMPUTATION OF CA PITAL GAINS. THE INCOME TAX SIMPLIFICATION COMMITTEE (EASWAR COMMITT EE) HAS IN ITS FIRST REPORT, POINTED OUT THAT THIS PROVISION DOES NOT PROVIDE ANY RELIEF WHERE THE SELLER HAS ENTERED INTO AN AGREEMENT TO SELL THE PROPERTY MUCH BEFORE THE ACTUAL DATE OF TRANSFER OF THE IMMOVABLE PROPERTY AND THE SALE CONSIDERATION IS FIXED IN SUC H AGREEMENT, WHEREAS SIMILAR PROVISION EXISTS IN SECTION 43CA OF THE ACT I.E. WHEN AN IMMOVABLE PROPERTY IS SOLD AS A STOCK-IN-TR ADE. IT IS PROPOSED TO AMEND THE PROVISIONS OF SECTION 50C SO AS TO PROVIDE THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMO UNT OF ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 12 CONSIDERATION FOR THE TRANSFER OF IMMOVABLE PROPERT Y AND THE DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUE ON THE DATE OF THE AGREEMENT MAY BE TAKEN FOR THE PURPOSES OF COMP UTING THE FULL VALUE OF CONSIDERATION. IT IS FURTHER PROPOSED TO PROVIDE THAT THIS PROVISION SHALL APPLY ONLY IN A CASE WHERE THE AMOU NT OF CONSIDERATION REFERRED TO THEREIN, OR A PART THEREO F, HAS BEEN PAID BY WAY OF AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BAN K DRAFT OR USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK ACCOUN T, ON OR BEFORE THE DATE OF THE AGREEMENT FOR THE TRANSFER OF SUCH IMMOVABLE PROPERTY. THESE AMENDMENTS ARE PROPOSED TO BE MADE EFFECTIVE FROM THE 1STDAY OF APRIL, 2017 AND SHALL ACCORDINGLY APPLY I N RELATION TO ASSESSMENT YEAR 2017-18 AND SUBSEQUENT YEARS. 12. IT CAN BE SEEN FROM THE TEXT OF THE PROVISION AS WELL AS THE MEMORANDUM THAT FOR THE PURPOSE OF COMPUTATION OF CAPITAL G AIN IN A SITUATION WHERE THE AGREEMENT TO SELL WAS ENTERED AT AN EARLIER POINT OF TIME VIS--VIS THE REGISTRATION OF SALE DEED, A BENEFIT IN TERMS OF TAKING LOWER STAMP VALUE WITH REFERENCE TO THE EARLIER DATE OF AGREEMENT SHOULD BE SUBSTITUTED IN PLACE OF THE HIGHER STAM P VALUE W.R.T. THE LATER DATE OF REGISTRATION. EVEN THE MEMOR ANDUM ADMITS THAT SECTION 50C, AS SUCH, DID NOT PROVIDE ANY RELIEF IN SUCH A SITUATION AND THE PROVISO HAS BEEN INSERTED TO PROVIDE SUCH A RELIEF. THIS PROVISO HAS BEEN INSERTED BY THE FINANCE ACT, 2016 W.E.F. 01-04-2017. THE MEMORANDUM ALSO PROVIDES THAT TH E AMENDMENT SHALL BE EFFECTIVE FROM 01-04-2017 AND SHALL APP LY TO THE ASSESSMENT YEAR 2017-18 AND SUBSEQUENT YEARS. NOW THE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 13 QUESTION ARISES AS TO WHETHER THIS PROVISO, CONFERRING BENEF IT IN SPECIFIED CASES, CAN STILL BE TREATED AS RETROSPECTIVE IN NATU RE? 13. IT IS A FUNDAMENTAL RULE OF INTERPRETATION THAT ORDINARILY, A LEGISLATION IS PRESUMED TO BE PROSPECTIVE UNLESS THERE APPEARS A CONTRARY INTENTION. SIMILARLY, A STATUTE WHICH IMPAIRS VESTED RIGH TS ACQUIRED UNDER EXISTING LAW OR WHICH CREATES NEW OBLIGATIONS O R ATTACHES A NEW DISABILITY, IS ALSO PROSPECTIVE. HOWEVER, A CLARIFICATORY AMENDMENT OR A PROVISION WHICH SUPPLIES SOME OMISSION IN AN EXISTING PROVISION IS DECLARATORY AND RETROSPEC TIVE. SIMILARLY, A PROVISION WHICH IS SUBSEQUENTLY INTRODUCED FOR T ONING DOWN THE RIGOR OF AN EXISTING PROVISION IS ALSO PRESUMED TO BE RETROSPECTIVE. TO PUT IT DIFFERENTLY, IF A NEW BENEFIT IS SOUG HT TO BE CONFERRED IN RELATION TO AN EXISTING PROVISION, SUCH AN AMEN DMENT EVEN THOUGH DECLARED AS PROSPECTIVE, ASSUMES CHARACTER OF A RETROSPECTIVE NATURE. 14. AT THIS JUNCTURE, IT WOULD BE PERTINENT TO NOTE THE RATIO AND THE BACKGROUND OF FACTS IN THE CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 466 (SC) , A CONSTITUTION BENCH JUDGMENT OF THE HONBLE SUPREME COURT. PRIOR TO INSERTION OF SECTION 153A, DEALING WITH ASSESSMENT IN CASE OF A SEARCH OR REQUISITION W. E.F. ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 14 01-06-2003, THERE WAS A SPECIAL PROCEDURE FOR BLOCK ASS ESSMENT IN SEARCH CASES, WHICH WAS INSERTED BY THE FINANCE ACT, 1995 W.E.F. 01-07-1995, THROUGH CHAPTER XIV-B WITH SECTIONS 158B TO 1 58BI. SECTION 113 DEALS WITH SPECIAL TAX RATE IN CASE OF BLOCK ASSES SMENT OF SEARCH CASE. THIS SECTION PROVIDES THAT THE TOTAL UNDISC LOSED INCOME OF THE BLOCK PERIOD, DETERMINED U/S.158BC, SHALL BE CHARGEABLE TO TAX @ 60%. THIS PROVISION WAS ALSO INSERTED A LONG WITH CHAPTER XIV-B W.E.F. 01-07-1995. DIVERGENT VIEWS SU RFACED ON THE QUESTION AS TO WHETHER THE RATE OF 60% IS EXCLUSIVE OR INCLUSIVE OF SURCHARGE. TO SETTLE THE CONTROVERSY, THE FINA NCE ACT, 2002 INSERTED A PROVISO TO THE SECTION, W.E.F. 01-06-2002 , PROVIDING THAT THE TAX CHARGEABLE UNDER THE SECTION SHALL BE INCREASED BY SURCHARGE, IF ANY. AFTER INSERTION OF THIS PR OVISO, AGAIN A PANDORA BOX OPENED ON THE PROSPECTIVE OR RETROSPECTIVE OPERATION OF THIS PROVISO. THE HONBLE SUPREME COURT IN CIT VS. SURESH N. GUPTA (2008) 297 ITR 322 (SC) HELD THAT THE PROVISO TO SECTION 113 IS CLARIFICATORY AND HENCE, SHOULD BE READ INTO BLOCK ASSESSMENT SCHEME UNDER CHAPTER XIV-B FROM RETROSPECTIV E EFFECT. SIMILAR VIEW WAS REITERATED BY THE HONBLE SUPREME COURT IN CIT VS. RAJIV BHATARA (2009) 310 ITR 105 (SC) BY HOLDING THE PROVISO U/S.113 TO BE RETROSPECTIVE IN NATURE. ONCE AGAIN, THIS ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 15 ISSUE CAME UP FOR CONSIDERATION BEFORE THE HONBLE SUPREME COURT IN CIT VS. VATIKA TOWNSHIP (P) LTD. (2009) 314 ITR 338 (SC). UNABLE TO CONCUR WITH THE EARLIER VIEW HOLDING SUCH AN AMENDM ENT TO BE RETROSPECTIVE, THEIR LORDSHIPS REFERRED THE MATTER FO R CONSIDERATION BY A LARGER BENCH. IT WAS PURSUANT TO SUCH A REFERENCE, THAT THE CONSTITUTION BENCH IN VATIKA TOWNSHIP PVT. LTD. 367 ITR 466 (SC) CAME TO CONSIDER THIS ISSUE. IT HAS BEEN LAID DOWN IN THIS DECISION THAT ORDINARILY LEGISLATION IS PRESUMED NOT TO BE INTENDED TO HAVE A RETROSPECTIVE OPERATION AS THE LAW PASS ED TODAY CANNOT APPLY TO THE EVENTS OF THE PAST. THEIR LORDSHIP S OF THE CONSTITUTION BENCH FURTHER OBSERVED THAT A LEGISLATION WHICH IMPOSES NEW OBLIGATION SHOULD BE TREATED AS PROSPECTIVE UNLES S THE LEGISLATIVE INTENT IS CLEARLY TO GIVE THE ENACTMENT A RETROSPEC TIVE EFFECT. IT WAS IN THIS BACKDROP OF THE PRINCIPLES OF STATUTORY INTERPRETATION THAT THE CONSTITUTION BENCH HELD PROVISO TO SECTION 113 AS PROSPECTIVE. AFTER HOLDING SO, THEIR LORDSHIPS OBSE RVED THAT IF THE LEGISLATURE IS GOING TO CONFER A BENEFIT, THEN SUCH AN AMENDMENT WILL HAVE A RETROSPECTIVE EFFECT. DISCUSSING THIS ISSU E IN PARA 33 OF THE JUDGMENT, THE HONBLE APEX COURT HELD THA T : WE WOULD ALSO LIKE TO POINT OUT, FOR THE SAKE OF COMPLETENES S, THAT WHERE A BENEFIT IS CONFERRED BY LEGISLATION, THE RULE AGAINST A ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 16 RETROSPECTIVE CONSTRUCTION IS DIFFERENT. IF LEGISLATION CONFERS A BENEFIT ON SOME PERSONS BUT WITHOUT INFLICTING A CORRESPONDING DETRIMENT ON SOME OTHER PERSON OR ON THE PUBLIC GENERALLY A ND WHERE TO CONFER SUCH BENEFIT APPEARS TO HAVE BEEN THE LEG ISLATORS OBJECT, THEN THE PRESUMPTION WOULD BE THAT SUCH LEGISLATION, GIVIN G IT A PURPOSIVE CONSTRUCTION, WOULD WARRANT IT TO BE GIVEN A RETROSPECTIVE EFFECT. THE NET EFFECT OF THIS JUDGMENT IS THA T IF A FRESH BENEFIT IS PROVIDED BY THE PARLIAMENT IN AN EXISTING PROVIS ION, THEN SUCH AN AMENDMENT SHOULD BE GIVEN RETROSPECTIVE EFFEC T. 15. ADVERTING TO THE FACTS OF THE INSTANT CASE, WE FIND THAT S ECTION 50C(1), BEFORE AMENDMENT BY THE FINANCE ACT, 2016, CON TEMPLATED THE ADOPTION OF STAMP VALUE IN RESPECT OF LAND OR BUILDING OR BOTH TRANSFERRED BY AN ASSESSEE AS FULL VALUE OF CONSIDERATION WITH REFERENCE TO THE DATE OF TRANSFER OR THE EXECUTION OF SALE DEED. THIS WAS WITHOUT CONSIDERATION OF A SITUATION IN WHICH AGREEMENT TO SELL MAY HAVE BEEN ENTERED INTO MUCH PRIOR TO THE DATE OF REGISTR ATION OF SALE DEED. BY THIS AMENDMENT CARRIED OUT W.E.F. 01-0 4-2017 BY INSERTION OF THE ABOVE TWO PROVISOS, THE LEGISLATURE HAS CLARIFIE D THAT IN A SITUATION WHERE AGREEMENT TO SELL IS ENTERED INTO AT A DATE ANTERIOR TO THE DATE OF REGISTRATION OF SALE DEED AND CERTAIN CONSIDERATION IS RECEIVED AT THE TIME OF ENTERING INTO AGREEMEN T TO ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 17 SELL THROUGH A BANKING CHANNEL, THE STAMP VALUE, FOR THE PU RPOSES OF TRANSFER, SHOULD BE CONSIDERED WITH REFERENCE TO THE D ATE ON WHICH THE AGREEMENT TO SELL WAS ENTERED AND NOT A LATER DATE ON WHICH REGISTERED SALE DEED IS MADE. IT IS MANIFEST THAT WITH INSERTION OF THE PROVISO, THE PARLIAMENT HAS TONED DOWN THE PROVISION CONTAINED IN SUB-SECTION (1) BY WHICH STAMP VALUE O N THE DATE OF REGISTRATION OF SALE DEED IS CONSIDERED AS FULL VALUE OF CONSIDERATION NOTWITHSTANDING THE FACT THAT THE AGREEMENT TO SELL WAS EXECUTED MUCH EARLIER, IN WHICH SALE CONSIDERATION WAS DETERMINED AND A PART OF WHICH WAS ALSO RECEIVED THROUGH BANKING CHANNEL. WHEN WE CONSIDER THE FIRST PROVISO TO SECTION 50C IN THE LIGHT OF THE RATIO DECIDENDI OF THE CONSTITUTION BENCH JUDGMENT OF THE HONBLE SUMMIT COURT IN VATIKA TOWNSHIP (SUPRA), IT BECOMES VIVID THAT THE PROVISO TO SECTION 50C(1) IS RETROSPECTIVE. THE BENEFIT WHICH IS SOUGHT TO BE CONFERRED THROUGH THIS PROVISION IS WITHOUT INFLICTING DETRIMENT ON SOME OTHER PERSON OR ON THE PUB LIC GENERALLY. IT FURTHER EMERGES THAT THE IDEA BEHIND THIS PROVIS O IS TO GRANT A BENEFIT IN THE CIRCUMSTANCES NOTED HEREIN ONLY. GOING BY THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN PARA 33 OF VATIKA TOWNSHIP PVT. LTD. (SUPRA), WE HAVE NO HESITATION IN HOLDING THAT PROVISO TO SECTION 50C (1) IS RETROSPECTIVE IN NA TURE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 18 AND APPLIES TO THE ASSESSMENT YEAR UNDER CONSIDERATION AS W ELL. IT IS SO FOR THE REASON THAT THE RELIEF GIVEN THROUGH THIS AMENDMENT IS TO CERTAIN PERSONS WITHOUT INFLICTING A CORRESPONDING DETRIMENT O N SOME OTHER PERSON OR ON THE PUBLIC GENERALLY. FURTHER, IT IS OVERT FROM THE MEMORANDUM EXPLAINING THE PROVISIONS OF THE FINANCE BILL 2016 THAT THE OBJECT OF THE AMENDMENT IS ALSO TO CONFER SUC H A RELIEF OR BENEFIT. GOING BY THE RATIO IN THE CASE OF VATIKA TOWNSHIP (SUPRA), WE HAVE NO DOUBT WHATSOEVER IN OUR MIND THAT THE INSERTION MADE THROUGH THE ABOVE PROVISOS W.E.F. 01-04-20 17 IS RETROSPECTIVE AND APPLIES TO THE ASSESSMENT YEAR UNDER CONSIDERATION ALSO. 16. AT THIS STAGE, IT IS SIGNIFICANT TO NOTE THAT THE BENEFIT OF FIR ST PROVISO WOULD BE ALLOWED ONLY IF THE CONDITION AS STIPULATED IN SECOND PROVISO IS SATISFIED. IN OTHER WORDS, THE STAMP VALU E ON THE DATE OF AGREEMENT TO SELL SHALL BE CONSIDERED AS FULL VALUE O F CONSIDERATION ONLY IF THE AMOUNT OF CONSIDERATION OR PART OF S UCH CONSIDERATION WAS RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNEL ON OR BEFORE THE DATE OF AGREEMENT FOR TRANSFER. 17. REVERTING TO THE FACTS OF THE INSTANT CASE, WE FIND FROM PARA 7.3.3. ON PAGE 11 OF THE IMPUGNED ORDER THAT THE ASSESSE E RECEIVED ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 19 A SUM OF RS.11,000/- THROUGH CHEQUE NO. 99308 ON 09- 04-2001, WHICH IS PRIOR TO THE DATE OF AGREEMENT TO SELL, THAT IS, 31.5 .2002. THIS EVIDENCES THAT THE ASSESSEE GENUINELY ENTERED INTO AN AGREEMENT TO SELL WITH THE DEVELOPER ON 31-05-2002 AND REC EIVED A SUM OF RS.11,000/-, WHICH CONSTITUTES RECEIPT OF A `PART OF CONSIDERATION BEFORE THE DATE OF AGREEMENT. NOT ONLY THAT, THE ASSESSEE RECEIVED FURTHER SUMS OF RS.2 LAKH ON 23-10-2 002; RS. 5 LAKH ON 16-04-2003 AND RS.7 LAKH BEFORE 11-01-2007. ALL THESE RECEIPTS WERE THROUGH BANKING CHANNEL. A FACTUAL FINDING RE CORDED BY THE LD. CIT(A) IN THE IMPUGNED ORDER TO THIS EXTENT HAS NOT BEEN CONTROVERTED ON BEHALF OF THE REVENUE. 18. WHEN WE CONJOINTLY READ THE TWO PROVISOS TO SECTION 5 0C(1), IT EMERGES THAT THE ASSESSEE ENTERED INTO AN AGREEMENT TO SEL L ON 31-05-2002; RECEIVED PART PAYMENTS; AND FINALLY EXECUTED REGISTERED CONVEYANCE DEED ON 28-07-2010. HAVING SATISF IED THE MANDATE OF SECOND PROVISO AND FURTHER GOING BY THE FIRST PROVISO TO SECTION 50C(1), THE STAMP VALUE FOR THE PURPOSE OF COMPU TATION OF CAPITAL GAIN AT THE TIME OF SALE IN THE YEAR 2010 SHOULD BE CONSIDERED WITH REFERENCE TO THE DATE OF AGREEMENT, NAMEL Y, 31- 05-2002. WE ORDER ACCORDINGLY. ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 20 19. HAVING HELD THAT THE TWO PROVISOS TO SECTION 50C(1) OF THE ACT ARE RETROSPECTIVELY APPLICABLE TO THE INSTANT CASE, WE NE ED TO GO BACK TO SECTION 48, WHICH PROVIDES FOR STARTING THE EXERCISE OF COMPUTATION OF CAPITAL GAIN BY TAKING THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSF ER OF THE CAPITAL ASSET. IT HAS BEEN NOTICED SUPRA THAT ONLY IN A CASE WHERE THE STAMP VALUE IS MORE THAN THE CONSIDERATION RECEIVED THAT THE PROCESS OF SUBSTITUTION STARTS. THUS WE NEED TO HAVE BOTH TH E FIGURES OF ACTUAL SALE CONSIDERATION AND STAMP VALUE AT HAND . CONTROVERSY IN THE EXTANT APPEAL IS ALSO ON THE DETERMINATION O F THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE. WHEREAS, THE CASE OF THE ASSESSEE IS THAT THE SALE CONSIDERATION IS ONE 495 SQ.FT. FLAT IN THE NEW BUILDING PLUS MONETARY CONSIDERATION OF RS.51 LAKH, THE REVENUE HAS CONSIDERED THE VALUE OF TWO FLATS OF 405 SQ. FT. AND 495 SQ FT. PLUS RS.51.00 LAC AS THE FULL VALUE OF CONSIDERA TION. WE HAVE SEEN THE ENTIRE GAMUT OF THE FACTUAL PANORAMA ABOVE, FROM WHICH IT TRANSPIRED THAT SHRI SHINDE WAS HAVING SOME OCCUPAN CY RIGHTS IN FLAT NO. 5A OF `SAI CHHAYA AND EVENTUALLY HIS CLAIM WAS SETTLED BY ALLOTTING HIM A 405 SQ. FT. FLAT IN THE NEW BUILDING. IT IS IN THIS LIGHT OF THE FACTS THAT WE NEED TO DECIDE WHETHER THE ASS ESSEE TRANSFERRED FLAT NO. 5 AND 5A IN `SAI CHHAYA OR ONLY FLA T NO. 5. ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 21 WHEREAS THE ASSESSEE IS CONTENDING THAT HE TRANSFERRED ONLY ONE FLAT, THE DEPARTMENT HAS OPINED THAT HE TRANSFERRED BOTH THE FLATS. 20. WE FIND FROM THE NATURE OF LITIGATION BETWEEN THE ASSES SEE AND SH, SHINDE THAT THE LATTER WAS HAVING ONLY OCCUPANCY RIGHT IN RESPECT OF FLAT NO. 5A. THE OWNERSHIP RIGHT IN IT VESTED ONLY IN THE ASSESSEE. NO MATERIAL HAS BEEN BROUGHT ON RECORD TO ESTA BLISH THE OWNERSHIP RIGHT OF SH, SHINDE IN FLAT NO.5A. AS SUCH, IT IS HE LD THAT AS THE ASSESSEE WAS LEGAL OWNER OF BOTH THE FLATS, 5 AND 5 A, IN `SAI CHHAYA, IT WAS HE ALONE WHO TRANSFERRED BOTH THE FLATS ADMEASURING 898.48 SQ.FT. AREA TO THE DEVELOPER. THUS TH E STAMP VALUE AS WELL AS THE ACTUAL SALE CONSIDERATION HAS TO BE WORKE D OUT ACCORDINGLY. 21. NOW COMES THE NEXT QUESTION OF ALLOWING DEDUCTION TO THE ASSESSEE ON ACCOUNT OF THE VALUE OF ONE FLAT OF 405 SQ.F T. TO BE ALLOTTED TO SH. SHINDE IN THE NEW DEVELOPED BUILDING. THE HONBLE BOMBAY HIGH COURT IN CIT VS. ABRAR ALVI (2001) 247 ITR 312 (BOM.) HAS HELD THAT A PAYMENT FOR REMOVAL OF ENCUMBRANCES IS DEDUCTIBLE U/S.48(1) AS EXPENSES INCURRED WHOLLY AND EXCLUS IVELY IN CONNECTION WITH TRANSFER. WHERE THIS IS NOT POSSIBLE, WITHO UT DISCHARGE OF LIABILITY, PAYMENT TOWARDS SUCH LIABILITY SHOULD BE ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 22 CONSIDERED AS `IN CONNECTION WITH TRANSFER, WHICH EXPRESSIO N IS WIDE THAN THAT OF THE `TRANSFER. SIMILAR VIEW HAS BEEN TAK EN BY THE HONBLE MADRAS HIGH COURT IN CIT VS. M/S. BRADFORD TRADING COMPANY (P) LTD. (2003) 261 ITR 222 (MADRAS) HOLDING THAT THE AMOUNT PAID FOR REMOVING ENCUMBRANCES AND SETTLEMENT OF CLA IM IS EXPENDITURE INCURRED IN CONNECTION WITH TRANSFER OF A CAPITAL A SSET DEDUCTIBLE U/S.48(1) OF THE ACT. IN THE LIGHT OF THE ABOVE, IT IS HELD THAT THE VALUE OF FLAT OF 405 SQ.FT. TO BE ALLOTTED IN THE NEW B UILDING SHOULD BE ACCORDINGLY REDUCED FROM THE FULL VALUE OF CONS IDERATION U/S 48(I). 22. IN THE FINAL ANALYSIS, WE SET-ASIDE THE IMPUGNED OR DER AND REMIT THE MATTER TO THE FILE OF AO FOR COMPUTING THE CAPITAL GAIN AFRESH IN LINE WITH OUR ABOVE OBSERVATIONS AND DIRECTIONS. 23. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VI CE PRESIDENT PUNE; DATED : 25 TH JANUARY, 2019 ITA NO.1503/PUN/2015 DINAR UMESHKUMAR MORE 23 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, NASHIK 4. 5. THE PR.CIT-1, NASHIK , , / DR B, ITAT, PUNE; 6. / GUARD FILE. \ TRUE COPY // / BY ORDER, / TRUE COPY // SENIOR PRIVATE SEC RETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 23-01-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 25-01-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *