Amul Research & Development Association, Anand V. The Income Tax Officer, Ward-3, Anand

ITA 3295/AHD/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9480 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 08-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income; Charitable institution; Retrospective amendment
• Section: 43CA; 43B; 143(3); 50C; 40(a)(ia); 12A

Judgement Text

ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] ITA NO. 3295/AHD/2016 ASSESSMENT YEAR: 2011-12 AMUL RESEARCH & DEVELOPMENT ASSOCIATION .......... ........APPELLANT C/O. AMUL DAIRY PREMISES, ANAND 388 001 [PAN : AAATA 2673 H] VS. THE INCOME TAX OFFICER ...........................RESPONDENT WARD-3, ANAND APPEARANCES BY: SANJAY R SHAH, FOR THE APPELLANT MUDIT NAGPAL, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 14.03.2019 DATE OF PRONOUNCING THE ORDER : 11.06.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 30 TH AUGUST 2016 PASSED BY THE CIT(A)-5, VADODARA, IN T HE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2011-12. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOW S:- 1. THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW AND CONTRARY TO THE PROVISIONS OF LAW & FACTS. IT IS SUBMITTED THAT IT BE SO DONE NOW. 2. THE LEARNED CIT(A) ERRED ON FACTS AS WELL AS I N LAW IN CONFIRMING THE ACTION OF THE LEARNED AO IN CALCULATING THE CAPITAL GAIN ON SALE OF LAND AT RS.2,15,22,533/- ON THE BASIS OF STAMP AUTHORITY VA LUATION CALCULATED ON THE DATE OF EXECUTION OF SALE DEED AS AGAINST RS.1,35,4 9,410/- COMPUTED BY THE APPELLANT AND OFFERED FOR TAX PURPOSES. 3. THE LEARNED CIT(A) ERRED IN LAW BY NOT CONSIDE RING THE CIRCLE RATE OF THE YEAR 2007 IN WHICH THE PRICE WAS AGREED FOR THE PUR POSE OF CALCULATING THE STAMP AUTHORITY VALUATION. IT IS SUBMITTED THAT THE LAND WAS SOLD IN 2007 AT AN AGREED PRICE AND ONLY PROCEDURAL FORMALITIES HAS BE EN COMPLETED IN THE YEAR ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 2 OF 10 UNDER CONSIDERATION. THUS THE AGREED PRICE SHOULD B E TAKEN TO CONSIDERATION WHILE COMPUTING THE CAPITAL GAIN AND DEFICIT FOR TH E YEAR SHOULD BE WORKED OUT AFTER CONSIDERING THE CAPITAL GAIN COMPUTED TAKING THE CIRCLE RATE OF 2007 AND AFTER INDEXING THE AMOUNT OF CAPITAL ASSET. IT IS S UBMITTED THAT IT BE SO HELD NOW. 3. THE ASSESSEE BEFORE US IS A CHARITABLE TRUST DUL Y REGISTERED UNDER SECTION 12A OF THE INCOME-TAX ACT, 1961. DURING THE RELEVANT P REVIOUS YEAR, THE ASSESSEE SOLD A PIECE OF LAND TO GUJARAT CO-OPERATIVE MILK MARKETIN G FEDERATION LTD. THE PRICE AT WHICH LAND WAS SOLD WAS RS.3,600/- PER SQUARE METER AND THIS PRICE WAS AGREED TO IN MARCH 2007, AS EVIDENCED BY BOARD RESOLUTION DATED 27 TH APRIL 2007 AND THE FACT THAT A FORMAL APPLICATION, FOR APPROVAL OF THE TRANSACTI ON BY THE CHARITY COMMISSIONER, WAS MADE ON 29 TH APRIL 2007. THE CHARITY COMMISSIONERS APPROVAL W AS EVENTUALLY GIVEN ON 14 TH JULY 2009, AND FURTHER EXTENDED TILL 14 TH NOVEMBER 2010, AND FINALLY THE SALE TOOK PLACE ON 30 TH JULY 2010. WHILE THE SALE CONSIDERATION WAS STATE D TO BE RS.1,68,84,000/-, THE STAMP DUTY VALUATION, AS ON T HAT DATE, WAS RS.2,48,57,143/-. IT WAS IN THIS BACKDROP THAT SALE CONSIDERATION WAS AD OPTED, UNDER SECTION 50C, AT RS.2,48,57,143/- FOR THE PURPOSE OF COMPUTING CAPIT AL GAINS. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). LE ARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER, AND OBSERVED, INTER ALIA, AS FOLLOWS:- 6.3 I HAVE CAREFULLY CONSIDERED THE FACTS AND C IRCUMSTANCES OF THE CASE, THE OBSERVATIONS OF THE ASSESSING OFFICER, THE SUBMISSI ONS OF THE ASSESSEE, MATERIAL AVAILABLE ON RECORD AND THE JUDICIAL PRONO UNCEMENTS ON THE SUBJECT. IT IS NOT DISPUTED THAT IN THIS CASE THE CONSIDERATION DECLARED BY THE ASSESSEE WAS LESS THAN THE VALUE DETERMINED BY THE STAMP VAL UE AUTHORITIES FOR STAMP DUTY PURPOSES. THE CONSIDERATION DECLARED BY THE AS SESSEE FOR THE TRANSFER OF THE RELEVANT PIECE OF LAND WAS RS.1,68,84,000/-. HO WEVER, THE STAMP DUTY AUTHORITIES HAD VALUED THE PROPERTY FOR STAMP DUTY PURPOSES AT RS.2,48,57,143/-. AS PER THE MATERIAL AVAILABLE ON THE RECORDS, THE ASSESSEE HAD NOT OBJECTED BEFORE THE STAMP DUTY AUTHORITIES TO THE DETERMINATION OF THE VALUE OF THE PROPERTY BY THEM ON THE DATE OF REGIST RATION, THE ASSESSEE HAS ALSO NOT OBJECTED TO THE VALUATION AS ON THE DATE O F REGISTRATION, BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS . EVEN THOUGH, THE ASSESSEE HAS CONTENDED THAT HE HAD RECEIVED THE PRI CE AGREED ON 27.04.2007, IT HAS FAILED TO ESTABLISH THE LAND UND ER DISCUSSION WAS TRANSFERRED U/S 2(47) OF THE ACT, ON 27.04.2007. IN FACT, FROM THE AVAILABLE RECORDS, IT IS EVIDENT THAT THE SAID LAND WAS IN FA CT TRANSFERRED ON 30.07,2010, THEREFORE, THE ASSESSING OFFICER WAS CORRECT TO ADO PT THE VALUE OF THE LAND AS DETERMINED BY THE STAMP DUTY AUTHORITIES, AS ON 30. 07.2010 AS THE SALE CONSIDERATION OF LAND ON THE DATE OF ITS TRANSFER, FOR THE PURPOSES OF SECTION 48/50C OF THE ACT. 4. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 3 OF 10 6. WE FIND THAT SO FAR AS THE RELEVANT DATE, FOR VA LUATION OF THE ASSET AS PER STAMP DUTY RATES, IS CONCERNED, THE ISSUE IN NOW SE TTLED IN PRINCIPLE, IN FAVOUR OF THE ASSESSEE, BY A DECISION OF THIS TRIBUNAL IN THE CAS E OF DHARAMSHIBHAI SONANI VS. ACIT [(2016) 161 ITD 627 (AHD)] WHEREIN THE TRIBUNA L HAS, INTER ALIA, OBSERVED AS FOLLOWS:- 4. THE FUNDAMENTAL PURPOSE OF INTRODUCING SECTION 50C WAS TO COUNTER SUPPRESSION OF SALE CONSIDERATION ON SALE OF IMMOVA BLE PROPERTIES, AND THIS SECTION WAS INTRODUCED IN THE LIGHT OF WIDESPREAD B ELIEF THAT SALE TRANSACTIONS OF LAND AND BUILDING ARE OFTEN UNDERVALUED RESULTING I N LEAKAGE OF LEGITIMATE TAX REVENUES. THIS SECTION PROVIDES FOR A PRESUMPTION, A REBUTTABLE PRESUMPTION THOUGH-SOMETHING WITH WHICH I AM NOT CONCERNED FOR THE TIME BEING, THAT THE VALUE, FOR THE PURPOSE OF COMPUTING STAMP DUTY, ADO PTED BY THE STAMP DUTY VALUATION AUTHORITY REPRESENTS FAIR INDICATION OF T HE MARKET PRICE OF THE PROPERTY SOLD. SECTION 50C(1) PROVIDES THAT, 'WHERE THE CONS IDERATION 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 OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN T HIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORITY') FOR THE PURPOSE OF PAY MENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER'. THE TROUBLE, HOWEVER, IS THAT WHILE THE SALE CONSIDERATION IS FIXED AT THE POINT OF TIME WHEN AGREEMENT TO SELL IS ENTERED INTO, THERE IS SOMETIMES CONSIDERABLE GA P IN PARTIES AGREEING TO A TRANSACTION (I.E. AGREEMENT TO SELL) AND THE ACTUAL EXECUTION OF THE TRANSACTION (I.E. SALE DEED), AND YET, IT IS THE VALUE AS ON TH E DATE OF EXECUTION OF SALE DEED WHICH IS RECOGNIZED BY SECTION 50C FOR THE PURPOSE OF COMPUTING THE CAPITAL GAIN BECAUSE THAT IS WHAT IS RELEVANT FOR THE PURPO SE OF COMPUTING STAMP DUTY FOR REGISTRATION OF SALE DEED. THE VERY COMPARISON BETWEEN THE VALUE AS PER SALE DEED AND THE VALUE AS PER STAMP DUTY VALUATION, ACC ORDINGLY, CEASES TO BE DEVOID OF A RATIONAL BASIS BECAUSE THESE TWO VALUES REPRESENT THE VALUES AT TWO DIFFERENT POINTS OF TIME. IN A SITUATION IN WHICH T HERE IS SIGNIFICANT DIFFERENCE BETWEEN THE POINT OF TIME WHEN AGREEMENT TO SELL IS EXECUTED AND WHEN THE SALE DEED IS EXECUTED, THEREFORE, SHOULD IDEALLY BE BETW EEN THE SALE CONSIDERATION AS PER REGISTERED SALE DEED, WHICH IS FIXED BY WAY OF THE AGREEMENT TO SELL, VIS--VIS THE STAMP DUTY VALUATION AS AT THE POINT OF TIME WH EN AGREEMENT TO SELL, WHEREBY SALE CONSIDERATION WAS IN FACT FIXED, BECAUSE, IF A T ALL ANY SUPPRESSION OF SALE CONSIDERATION SHOULD BE ASSUMED, IT SHOULD BE ON TH E BASIS OF STAMP DUTY VALUATION AS AT THE POINT OF TIME WHEN THE SALE CON SIDERATION WAS FIXED. INCOME TAX SIMPLIFICATION COMMITTEE SET UP IN 2015, HEADED BY JUSTICE R V EASWAR-A FORMER JUDGE OF DELHI HIGH COURT AND ONE OF THE MOS T ILLUSTRIOUS FORMER PRESIDENTS OF THIS TRIBUNAL, TOOK NOTE OF THIS INCO NGRUITY AND, IN ITS VERY FIRST REPORT (HTTP://TAXSIMPLIFICATION.IN/REPORT.PDF), OB SERVED AS FOLLOWS: 6.1 RATIONALISATION OF SECTION 50C TO PROVIDE RELIE F WHERE SALE CONSIDERATION FIXED UNDER AGREEMENT TO SELL SECTION 50C MAKES A SPECIAL PROVISION FOR DETERMINI NG THE FULL VALUE OF CONSIDERATION IN CASES OF TRANSFER OF IMMOVABLE PRO PERTY. IT PROVIDES THAT WHERE THE CONSIDERATION DECLARED TO BE RECEIVED OR ACCRUING AS A RESULT OF ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 4 OF 10 THE TRANSFER OF LAND OR BUILDING OR BOTH, IS LESS T HAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (I.E. '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 BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION, A ND CAPITAL GAINS SHALL BE COMPUTED ON THE BASIS OF SUCH CONSIDERATION UNDER S ECTION 48 OF THE INCOME-TAX ACT. THE SCOPE OF SECTION 50C WAS EXTENDED W.E.F. A.Y. 2 010-11 TO THE TRANSACTION WHICH WERE EXECUTED THROUGH AGREEMENT T O SELL OR POWER OF ATTORNEY BY INSERTING THE WORD 'ASSESSABLE' ALONGWI TH WORDS 'THE VALUE SO ADOPTED OR ASSESSED'. HENCE, SECTION 50C IS NOW ALS O APPLICABLE IN CASE OF SUCH TRANSFERS. THE PRESENT PROVISIONS OF SECTION 50C DO NOT PROVID E ANY RELIEF WHERE THE SELLER HAS ENTERED INTO AN AGREEMENT TO SELL THE AS SET MUCH BEFORE THE ACTUAL DATE OF TRANSFER OF THE IMMOVABLE PROPERTY A ND THE SALE CONSIDERATION HAS BEEN FIXED IN SUCH AGREEMENT. A LATER SIMILAR P ROVISION INSERTED BY WAY OF SECTION 43CA DOES TAKE CARE OF SUCH A SITUATION. 6.2 IT IS THEREFORE PROPOSED TO INSERT THE FOLLOWIN G PROVISIONS IN SECTION 50C: (4) WHERE THE DATE OF AN AGREEMENT FIXING THE VALUE OF CONSIDERATION FOR THE TRANSFER OF THE ASSET AND THE DATE OF REGISTRATION OF THE TRANSFER OF THE ASSET ARE NOT SAME, THE VALUE REFERRED TO IN SUB-SECTION (1) MAY BE TAKEN AS THE VALUE ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERN MENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER O N THE DATE OF THE AGREEMENT. (5) THE PROVISIONS OF SUB-SECTION (4) SHALL APPLY O NLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION OR A PART THEREOF HAS BEEN RECEIVED BY ANY MODE OTHER THAN CASH ON OR BEFORE A DATE OF AGREEMENT FO R TRANSFER OF THE ASSET. 5. TRUE TO THE WORK ETHOS OF THE CURRENT GOVERNMENT , IT WAS THE FIRST TIME THAT WITHIN FOUR MONTHS OF THE TAX SIMPLIFICATION COMMIT TEE BEING NOTIFIED, NOT ONLY THE FIRST REPORT OF THE COMMITTEE WAS SUBMITTED, BU T THE GOVERNMENT ALSO WALKED THE TALK BY ENSURING THAT THE SEVERAL STATUTORY AME NDMENTS, BASED ON RECOMMENDATIONS OF THIS REPORT, WERE INTRODUCED IN THE PARLIAMENT. SO FAR AS SECTION 50 C IS CONCERNED, THE FINANCE ACT 2016, WI TH EFFECT FROM 1ST APRIL 2017, INSERTED THE FOLLOWING PROVISOS TO SECTION 50C: 'PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXI NG 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 MAY BE TAKEN FOR THE PURPOSES OF COMPUTING FULL VALUE OF CONSIDERATION F OR SUCH TRANSFER: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION, OR A PART THEREOF, HAS BEE N RECEIVED BY WAY OF AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT OR BY USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK ACCOUNT, ON OR BEFOR E THE DATE OF THE AGREEMENT FOR TRANSFER.' ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 5 OF 10 6. THIS AMENDMENT WAS EXPLAINED, IN THE MEMORANDUM EXPLAINING THE PROVISIONS OF FINANCE BILL 2016 (HTTP://INDIABUDGET .NIC.IN/UB2016- 17/MEMO/MEM1.PDF), AS FOLLOWS: 'RATIONALIZATION OF SECTION 50C IN CASE SALE CONSID ERATION IS FIXED UNDER AGREEMENT EXECUTED PRIOR TO THE DATE OF REGISTRATIO N OF IMMOVABLE PROPERTY 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 AUTHORITY FOR THE P URPOSE OF PAYMENT OF STAMP DUTY SHALL BE TAKEN AS THE FULL VALUE OF CONS IDERATION FOR THE PURPOSES OF COMPUTATION OF CAPITAL GAINS. THE INCOME TAX SIM PLIFICATION COMMITTEE (EASWAR COMMITTEE) HAS IN ITS FIRST REPORT, POINTED OUT THAT THIS PROVISION DOES NOT PROVIDE ANY RELIEF WHERE THE SELLER HAS EN TERED 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-TRADE. IT IS PROPOSE D TO AMEND THE PROVISIONS OF SECTION 50C SO AS TO PROVIDE THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMOUNT OF CONSIDERATION FOR THE TRANSFER OF IMM OVABLE PROPERTY AND THE DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DU TY 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 TH AT THIS PROVISION SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION RE FERRED TO THEREIN, OR A PART THEREOF, HAS BEEN PAID BY WAY OF AN ACCOUNT PA YEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT OR USE OF ELECTRONIC CLEARING SYST EM THROUGH A BANK ACCOUNT, ON OR BEFORE THE DATE OF THE AGREEMENT FOR THE TRANSFER OF SUCH IMMOVABLE PROPERTY. 30 THESE AMENDMENTS ARE PROPOSE D TO BE MADE EFFECTIVE FROM THE 1ST DAY OF APRIL, 2017 AND SHALL ACCORDINGLY APPLY IN RELATION TO ASSESSMENT YEAR 2017-18 AND SUBSEQUENT YEARS.' 7. WHILE THE GOVERNMENT HAS THUS RECOGNIZED THE GEN UINE AND INTENDED HARDSHIP IN THE CASES IN WHICH THE DATE OF AGREEMEN T TO SELL IS PRIOR TO THE DATE OF SALE, AND INTRODUCED WELCOME AMENDMENTS TO THE STAT UE TO TAKE THE REMEDIAL MEASURES, THIS BRINGS NO RELIEF TO THE ASSESSEE BEF ORE ME AS THE AMENDMENT IS INTRODUCED ONLY WITH PROSPECTIVE EFFECT FROM 1ST AP RIL 2017. THERE CANNOT BE ANY DISPUTE THAT THIS AMENDMENT IN THE SCHEME OF SECTIO N 50C HAS BEEN MADE TO REMOVE AN INCONGRUITY, RESULTING IN UNDUE HARDSHIP TO THE ASSESSEE, AS IS EVIDENT FROM THE OBSERVATION IN EASWAR COMMITTEE RE PORT TO THE EFFECT THAT 'THE (THEN PREVAILING) PROVISIONS OF SECTION 50C DO NOT PROVIDE ANY RELIEF WHERE THE SELLER HAS ENTERED INTO AN AGREEMENT TO SELL THE AS SET MUCH BEFORE THE ACTUAL DATE OF TRANSFER OF THE IMMOVABLE PROPERTY AND THE SALE CONSIDERATION HAS BEEN FIXED IN SUCH AGREEMENT' RECOGNIZING THE INCONGRUIT Y THAT THE DATE AGREEMENT OF SELL HAS BEEN IGNORED IN THE STATUTE EVEN THOUGH IT WAS CRUCIAL AS IT WAS AT THIS POINT OF TIME THAT THE SALE CONSIDERATION IS FINALI ZED. THE INCONGRUITY IN THE STATUTE WAS GLARING AND UNDUE HARDSHIP NOT IN DISPU TE. ONCE IT IS NOT IN DISPUTE THAT A STATUTORY AMENDMENT IS BEING MADE TO REMOVE AN UNDUE HARDSHIP TO THE ASSESSEE OR TO REMOVE AN APPARENT INCONGRUITY, SUCH AN AMENDMENT HAS TO BE TREATED AS EFFECTIVE FROM THE DATE ON WHICH THE LAW , CONTAINING SUCH AN UNDUE HARDSHIP OR INCONGRUITY, WAS INTRODUCED. IN SUPPORT OF THIS PROPOSITION, I FIND SUPPORT FROM HON'BLE DELHI HIGH COURT'S JUDGMENT IN THE CASE OF CIT V. ANSAL LANDMARK TOWNSHIP (P.) LTD. [2015] 377 ITR 635/234 TAXMAN 825/61 ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 6 OF 10 TAXMANN.COM 45, WHEREIN APPROVING THE REASONING ADO PTED AN ORDER AUTHORED BY ME DURING MY TENURE AT AGRA BENCH [I.E RAJEEV KU MAR AGARWAL V. ADDL. CIT [2014] 149 ITD 363/45 TAXMANN.COM 555 (AGRA - T RIB.) WHICH CENTRED ON THE PRINCIPLE THAT WHEN LEGISLATURE IS REASONABLE AND C OMPASSIONATE ENOUGH TO UNDO THE UNDUE HARDSHIP CAUSED BY THE STATUTE 'SUCH AN A MENDMENT 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 RETROSP ECTIVE IN NATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY'. IN THIS C ASE, IT WAS SPECIFICALLY OBSERVED, AND IT WAS THIS OBSERVATION WHICH WAS REPRODUCED WI TH APPROVAL BY THEIR LORDSHIPS, AS FOLLOWS: 'NOW THAT THE LEGISLATURE HAS BEEN COMPASSIONATE EN OUGH TO CURE THESE SHORTCOMINGS OF PROVISION, AND THUS OBVIATE THE UNI NTENDED HARDSHIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LE GAL POSITION TO THE EFFECT THAT A CURATIVE AMENDMENT TO AVOID UNINTENDED CONSE QUENCES IS TO BE TREATED AS RETROSPECTIVE IN NATURE EVEN THOUGH IT M AY NOT STATE SO SPECIFICALLY, THE INSERTION OF SECOND PROVISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN THE RELATED LEGA L PROVISION WAS INTRODUCED. IN VIEW OF THESE DISCUSSIONS, AS ALSO FOR THE DETAI LED REASONS SET OUT EARLIER, WE CANNOT SUBSCRIBE TO THE VIEW THAT IT COULD HAVE BEEN AN 'INTENDED CONSEQUENCE' TO PUNISH THE ASSESSEES FOR NON-DEDUCT ION OF TAX AT SOURCE BY DECLINING THE DEDUCTION IN RESPECT OF RELATED PAYME NTS, EVEN WHEN THE CORRESPONDING INCOME IS DULY BROUGHT TO TAX. THAT W ILL BE GOING MUCH BEYOND THE OBVIOUS INTENTION OF THE SECTION. ACCORD INGLY WE HOLD THAT THE INSERTION OF SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE, IN NATURE AND IT HAS RETROSPECTIVE EFFECT FROM 1ST APRIL, 2005 BEING THE DATE FROM WHICH SUB CLAUSE (IA) OF SECTION 40(A) WAS INS ERTED BY THE FINANCE (NO. 2) ACT 2004' 8. THEIR LORDSHIPS WERE PLEASED TO HOLD THAT THIS R EASONING AND RATIONALE OF THIS DECISION 'MERITS ACCEPTANCE'. THE SAME PRINCIPLE, W HEN APPLIED IN THE PRESENT CONTEXT, LEADS TO THE CONCLUSION THAT THE PRESENT A MENDMENT, BEING AN AMENDMENT TO REMOVE AN APPARENT INCONGRUITY WHICH R ESULTED IN UNDUE HARDSHIPS TO THE TAXPAYERS, SHOULD BE TREATED AS RE TROSPECTIVE IN EFFECT. QUITE CLEARLY THEREFORE, EVEN WHEN THE STATUTE DOES NOT S PECIFICALLY STATE SO, SUCH AMENDMENTS, IN THE LIGHT OF THE DETAILED DISCUSSION S ABOVE, CAN ONLY BE TREATED AS RETROSPECTIVE AND EFFECTIVE FROM THE DATE RELATE D STATUTORY PROVISIONS WAS INTRODUCED. VIEWED THUS, THE PROVISO TO SECTION 50 C SHOULD ALSO BE TREATED AS CURATIVE IN NATURE AND WITH RETROSPECTIVE EFFECT FR OM 1ST APRIL 2003, I.E. THE DATE EFFECTIVE FROM WHICH SECTION 50C WAS INTRODUCED. WH ILE THE GOVERNMENT MUST BE COMPLIMENTED FOR THE UNPARALLELED SWIFTNESS WITH WHICH THE EASWAR COMMITTEE RECOMMENDATIONS, AS ACCEPTED BY THE GOVER NMENT, WERE IMPLEMENTED, I, AS A JUDICIAL OFFICER, WOULD THINK THIS WAS STILL ONE STEP SHORT OF WHAT OUGHT TO HAVE BEEN DONE INASMUCH AS THE AMENDM ENT, IN TUNE WITH THE JUDGE MADE LAW, OUGHT TO HAVE BEEN EFFECTIVE FROM T HE DATE ON WHICH THE RELATED LEGAL PROVISIONS WERE INTRODUCED. AS I SAY SO, IN A DDITION TO THE REASONING GIVEN EARLIER IN THIS ORDER, I MAY ALSO REFER TO THE OBSE RVATIONS OF HON'BLE SUPREME COURT, THE CASE OF CIT V. ALOM EXTRUSION LTD. [2009 ] 319 ITR 306/185 TAXMAN 416, TO THE FOLLOWING EFFECT: 'ONCE THIS UNIFORMITY IS BROUGHT ABOUT IN THE FIRST PROVISO, THEN, IN OUR VIEW, THE FINANCE ACT, 2003, WHICH IS MADE APPLICABLE BY THE PARLIAMENT ONLY ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 7 OF 10 W.E.F. 1ST APRIL, 2004, WOULD BECOME CURATIVE IN NA TURE, HENCE, IT WOULD APPLY RETROSPECTIVELY W.E.F. 1ST APRIL, 1988 (I.E. THE DATE ON WHICH THE RELATED LEGAL PROVISION WAS INTRODUCED). SECONDLY, IT MAY B E NOTED THAT, IN THE CASE OF ALLIED MOTORS (P.) LTD. ETC. V. CIT (1997) 139 C TR (SC) 364: (1997) 224 ITR 677 (SC), THE SCHEME OF S. 43B OF THE ACT CAME TO BE EXAMINED. IN THAT CASE, THE QUESTION WHICH AROSE FOR DETERMINATION WA S, WHETHER SALES-TAX COLLECTED BY THE ASSESSEE AND PAID AFTER THE END OF THE RELEVANT PREVIOUS YEAR BUT WITHIN THE TIME ALLOWED UNDER THE RELEVANT SALES-TAX LAW SHOULD BE DISALLOWED UNDER S. 43B OF THE ACT WHILE COMPUTING THE BUSINESS INCOME OF THE PREVIOUS YEAR? THAT WAS A CASE WHICH RELATED TO ASST. YR. 1984-85. THE RELEVANT ACCOUNTING PERIOD ENDED ON 30TH JUNE, 1983 . THE ITO DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE WHICH WAS ON ACCOUNT OF SALES-TAX COLLECTED BY THE ASSESSEE FOR THE LAST QUARTER OF T HE RELEVANT ACCOUNTING YEAR. THE DEDUCTION WAS DISALLOWED UNDER S. 43B WHI CH, AS STATED ABOVE, WAS INSERTED W.E.F. 1ST APRIL, 1984. IT IS ALSO REL EVANT TO NOTE THAT THE FIRST PROVISO WHICH CAME INTO FORCE W.E.F. 1ST APRIL, 198 8 WAS NOT ON THE STATUTE BOOK WHEN THE ASSESSMENTS WERE MADE IN THE CASE OF ALLIED MOTORS (P.) LTD. ETC. (SUPRA). HOWEVER, THE ASSESSEE CONTENDED THAT EVEN THOUGH THE FIRST PROVISO CAME TO BE INSERTED W.E.F. 1ST APRIL, 1988, IT WAS ENTITLED TO THE BENEFIT OF THAT PROVISO BECAUSE IT OPERATED RETROSP ECTIVELY FROM 1ST APRIL, 1984, WHEN S. 43B STOOD INSERTED. THIS IS HOW THE Q UESTION OF RETROSPECTIVITY AROSE IN ALLIED MOTORS (P.) LTD. ETC. (SUPRA). THIS COURT, IN ALLIED MOTORS (P.) LTD. ETC. (SUPRA) HELD THAT WHEN A PROVISO IS INSER TED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE A PRO VISO WHICH SUPPLIES AN OBVIOUS OMISSION IN THE SECTION AND WHICH PROVIS O IS REQUIRED TO BE READ INTO THE SECTION TO GIVE THE SECTION A REASONABLE I NTERPRETATION, IT COULD BE READ RETROSPECTIVE IN OPERATION, PARTICULARLY TO GI VE EFFECT TO THE SECTION AS A WHOLE. ACCORDINGLY, THIS COURT, IN ALLIED MOTORS (P .) LTD. ETC. (SUPRA), HELD THAT THE FIRST PROVISO WAS CURATIVE IN NATURE, HENC E, RETROSPECTIVE IN OPERATION W.E.F. 1ST APRIL, 1988. IT IS IMPORTANT TO NOTE ONC E AGAIN THAT, BY FINANCE ACT, 2003, NOT ONLY THE SECOND PROVISO IS DELETED BUT EV EN THE FIRST PROVISO IS SOUGHT TO BE AMENDED BY BRINGING ABOUT AN UNIFORMIT Y IN TAX, DUTY, CESS AND FEE ON THE ONE HAND VIS-A-VIS CONTRIBUTIONS TO WELF ARE FUNDS OF EMPLOYEE(S) ON THE OTHER. THIS IS ONE MORE REASON WHY WE HOLD T HAT THE FINANCE ACT, 2003, IS RETROSPECTIVE IN OPERATION. MOREOVER, THE JUDGMENT IN ALLIED MOTORS (P.) LTD. ETC. (SUPRA) IS DELIVERED BY A BENCH OF T HREE LEARNED JUDGES, WHICH IS BINDING ON US. ACCORDINGLY, WE HOLD THAT FINANCE ACT, 2003, WILL OPERATE RETROSPECTIVELY W.E.F. 1ST APRIL, 1988 (WHEN THE FI RST PROVISO STOOD INSERTED). LASTLY, WE MAY POINT OUT THE HARDSHIP AND THE INVID IOUS DISCRIMINATION WHICH WOULD BE CAUSED TO THE ASSESSEE(S) IF THE CONTENTIO N OF THE DEPARTMENT IS TO BE ACCEPTED THAT FINANCE ACT, 2003, TO THE ABOVE EX TENT, OPERATED PROSPECTIVELY. TAKE AN EXAMPLEIN THE PRESENT CASE, THE RESPONDENTS HAVE DEPOSITED THE CONTRIBUTIONS WITH THE R.P.F.C. AFTER 31ST MARCH (END OF ACCOUNTING YEAR) BUT BEFORE FILING OF THE RETURNS U NDER THE IT ACT AND THE DATE OF PAYMENT FALLS AFTER THE DUE DATE UNDER THE EMPLOYEES' PROVIDENT FUND ACT, THEY WILL BE DENIED DEDUCTION FOR ALL TIM ES. IN VIEW OF THE SECOND PROVISO, WHICH STOOD ON THE STATUTE BOOK AT THE REL EVANT TIME, EACH OF SUCH ASSESSEE(S) WOULD NOT BE ENTITLED TO DEDUCTION UNDE R S. 43B OF THE ACT FOR ALL TIMES. THEY WOULD LOSE THE BENEFIT OF DEDUCTION EVE N IN THE YEAR OF ACCOUNT IN WHICH THEY PAY THE CONTRIBUTIONS TO THE WELFARE FUNDS, WHEREAS A ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 8 OF 10 DEFAULTER, WHO FAILS TO PAY THE CONTRIBUTION TO THE WELFARE FUND RIGHT UPTO 1ST APRIL, 2004, AND WHO PAYS THE CONTRIBUTION AFTER 1S T APRIL, 2004, WOULD GET THE BENEFIT OF DEDUCTION UNDER S. 43B OF THE ACT. I N OUR VIEW, THEREFORE, FINANCE ACT, 2003, TO THE EXTENT INDICATED ABOVE, S HOULD BE READ AS RETROSPECTIVE. IT WOULD, THEREFORE, OPERATE FROM 1S T APRIL, 1988, WHEN THE FIRST PROVISO WAS INTRODUCED. IT IS TRUE THAT THE PARLIAM ENT HAS EXPLICITLY STATED THAT FINANCE ACT, 2003, WILL OPERATE W.E.F. 1ST APR IL, 2004. HOWEVER, THE MATTER BEFORE US INVOLVES THE PRINCIPLE OF CONSTRUC TION TO BE PLACED ON THE PROVISIONS OF FINANCE ACT, 2003.' 9. SO FAR AS THE AMENDMENT TO SECTION 50C BEING RET ROSPECTIVE IN EFFECT IS CONCERNED, THERE IS NO DOUBT ABOUT THE LEGAL POSITI ON. I HOLD THE PROVISOS TO SECTION 50C BEING EFFECTIVE FROM 1ST APRIL 2003. TH IS IS PRECISELY WHAT THE LEARNED COUNSEL HAS PRAYED FOR. IN HIS DETAILED WRI TTEN SUBMISSIONS, HE HAS MADE OUT OF A STRONG CASE FOR THE AMENDMENT TO SECT ION 50C BEING TREATED AS RETROSPECTIVE AND WITH EFFECT FROM 1ST APRIL 2003. THE PLEA OF THE ASSESSEE IS INDEED WELL TAKEN AND DESERVES ACCEPTANCE. WHAT FOL LOWS IS THIS. THE MATTER WILL NOW GO BACK TO THE ASSESSING OFFICER. IN CASE HE FI NDS THAT A REGISTERED AGREEMENT TO SELL, AS CLAIMED BY THE ASSESSEE, WAS ACTUALLY EXECUTED ON 29.6.2005 AND THE PARTIAL SALE CONSIDERATION WAS RE CEIVED THROUGH BANKING CHANNELS, THE ASSESSING OFFICER, SO FAR AS COMPUTAT ION OF CAPITAL GAINS IS CONCERNED, WILL ADOPT STAMP DUTY VALUATION, AS ON 2 9.6.2005, OF THE PROPERTY SOLD AS IT EXISTED AT THAT POINT OF TIME. IN CASE THE AS SESSEE IS NOT CONTENT WITH THIS VALUE BEING ADOPTED UNDER SECTION 50C, HE WILL BE A T LIBERTY TO SEEK THE MATTER BEING REFERRED TO THE DVO FOR VALUATION, AGAIN AS O N 29.6.2005, OF THE SAID PROPERTY. AS A COROLLARY THERETO, THE SUBSEQUENT DE VELOPMENTS IN RESPECT OF THE PROPERTY SOLD (E.G. THE CONVERSION OF USE OF LAND) ARE TO BE IGNORED. IT IS ON THIS BASIS THAT THE CAPITAL GAINS WILL BE RECOMPUTED. WI TH THESE DIRECTIONS, THE MATTER STANDS RESTORED TO THE FILE OF THE ASSESSING OFFICE R FOR ADJUDICATION DE NOVO, AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE AN D BY WAY OF A SPEAKING ORDER. I ORDER SO. 7. IN THE CASE OF MOHD IMRAN BAIG VS. ITO (ORDER DA TED 27.11.2015), HYDERABAD A BENCH OF THE TRIBUNAL HAS HELD THAT AS LONG AS THERE IS CONCRETE MATERIAL TO DEMONSTRATE THAT THE AGREEMENT TO SELL HAS BEEN FIN ALIZED ON A DATE EARLIER THAN THE DATE OF SALE, THE DATE OF FINALIZING THE AGREEMENT TO SELL, RATHER THAN ACTUAL SALE TRANSACTION, WILL BE RELEVANT. 8. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDE RED VIEW, THE MATTER SHOULD BE REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR A DJUDICATION DE NOVO , INTER ALIA, IN THE LIGHT OF THE ABOVE LEGAL POSITION. 9. AS WE DO SO, WE MAY ALSO ADD THAT, IN ANY EVENT IRRESPECTIVE OF WHETHER THE ASSESSEE SPECIFICALLY DEMANDED THE REFERENCE TO THE DVO OR NOT, THE ASSESSEE SHOULD HAVE BEEN OFFERED AN OPPORTUNITY FOR REFEREN CE TO THE DVO. WE MAY, IN THIS CONTEXT, REFER TO THE FOLLOWING OBSERVATIONS MADE B Y ANOTHER CO-ORDINATE BENCH IN THE CASE OF RAJ KUMARI AGARWAL VS. DCIT [(2014) 47 TAXM ANN.COM 88 (AGRA):- ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 9 OF 10 6. WE FIND THAT HERE IS A CASE IN WHICH THE ASS ESSEE HAS SPECIFICALLY OBJECTED TO THE ADOPTION OF STAMP DUTY VALUATION RATE. THE M ERE FACT THAT THE APPELLANT HAS NOT CHALLENGED THE STAMP DUTY VALUATION CANNOT BE PUT AGAINST THE ASSESSEE. THE AUTHORITY FOR THE THIS PROPOSITION IS CONTAINED IN, HON'BLE JURISDICTIONAL HIGH COURT'S JUDGMENT, IN THE CASE O F CIT V. CHANDRA NARAIN CHAUDHRI ([2013] 38 TAXMANN.COM 275/38 TAXMANN.COM 275 (ALL.), WHEREIN THEIR LORDSHIPS HAVE OBSERVED THAT, 'THE QUESTION A S TO WHETHER THE ASSESSEE FILED ANY OBJECTIONS BEFORE THE STAMP VALUATION AUT HORITY TO DISPUTE THE VALUATION, OR FILED APPEAL OR REVISION OR MADE REFE RENCE BEFORE ANY AUTHORITY, COURT OR THE HIGH COURT UNDER SUB-SECTION (2)(B) OF SECTION 50C OF THE ACT IS NOT OF ANY RELEVANCE IN THIS CASE, AS THE AO HIMSELF OB SERVED THAT THE ASSESSEE DID NOT DISPUTE THE STAMP VALUATION BEFORE THE STAMP VA LUATION AUTHORITY. THERE MAY BE SEVERAL REASONS FOR THE PURCHASER NOT TO FIL E SUCH OBJECTION. A PURCHASER MAY NOT GO INTO LITIGATION, AND PAY STAMP DUTY, AS FIXED BY THE STAMP VALUATION AUTHORITY, WHICH MAY BE OVER AND ABOVE THE FAIR MAR KET VALUE OF THE PROPERTY, AS ON THE DATE OF TRANSFER, THOUGH THE AMOUNT SO DETER MINED HAS NOT BEEN ACTUALLY RECEIVED BY OWNER OF THE PROPERTY'. THE POSITION AS TO WHETHER REFERENCE SHOULD BE MADE TO THE DVO, EVEN WHEN THERE IS NO SPECIFIC PLEA TO THAT EFFECT BY THE ASSESSEE, IS NOW WELL SET OUT IN HON'BLE CALCUTTA H IGH COURT'S JUDGMENT IN THE CASE OF SUNIL KUMAR AGARWAL CIT (GA NO. 3686/2013 I N ITAT NO. 221/ 2013; JUDGMENT DATED 13TH MARCH 2014), WHEREIN THEIR LORD SHIPS HAVE, INTER ALIA, OBSERVED AS FOLLOWS: ' .WE ARE OF THE OPINION THAT THE VALUATION BY THE DEPARTMENTAL VALUATION OFFICER, CONTEMPLATED UNDER SECTION 50C, IS REQUIRE D TO AVOID MISCARRIAGE OF JUSTICE. THE LEGISLATURE DID NOT INTEND THAT THE CA PITAL GAIN SHOULD BE FIXED MERELY ON THE BASIS OF THE VALUATION TO BE MADE BY THE DISTRICT SUB-REGISTRAR FOR THE PURPOSE OF STAMP DUTY. THE LEGISLATURE HAS TAKEN CARE TO PROVIDE ADEQUATE MACHINERY TO GIVE A FAIR TREATMENT TO THE CITIZEN/TAXPAYER. THERE IS NO REASON WHY THE MACHINERY PROVIDED BY THE LEGISLA TURE SHOULD NOT BE USED AND THE BENEFIT THEREOF SHOULD BE REFUSED. EVEN IN A CASE WHERE NO SUCH PRAYER IS MADE BY THE LEARNED ADVOCATE REPRESENTING THE ASSESSEE, WHO MAY NOT HAVE BEEN PROPERLY INSTRUCTED IN LAW, THE A SSESSING OFFICER, DISCHARGING A QUASI JUDICIAL FUNCTION, HAS THE BOUN DEN DUTY TO ACT FAIRLY AND TO GIVE A FAIR TREATMENT BY GIVING HIM AN OPTION TO FOLLOW THE COURSE PROVIDED BY LAW.' 7. AS THERE IS NO BINDING JUDICIAL PRECEDENT CONTRA RY TO WHAT HAS BEEN HELD BY HON'BLE CALCUTTA HIGH COURT, AS ABOVE, THE ESTEEMED VIEWS OF THEIR LORDSHIPS, EVEN THOUGH FROM A NON-JURISDICTIONAL HIGH COURT, B IND US AS WELL. 8. IN THE LIGHT OF THE ABOVE LEGAL POSITION, THE PL EA OF THE ASSESSEE, AS SET OUT IN THE GROUND OF APPEAL, IS INDEED WELL TAKEN. THE PRE VAILING LEGAL POSITION IS NOW LIKE THIS. ONCE THE ASSESSEE CLAIMS THAT THE ACTUAL MARKET VALUE OF THE LAND OR BUILDING IS LESS THAN STAMP DUTY VALUATION ADOPTED BY THE AUTHORITIES, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO REFER THE V ALUATION OF SAID LAND OR BUILDING TO THE DEPARTMENTAL VALUATION OFFICER. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS NOT DONE SO. IN VIEW OF THIS FACTUAL PO SITION, AND IN THE LIGHT OF THE DISCUSSIONS ABOVE, WE DEEM IT FIT AND PROPER TO REM IT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION DE NOVO AFTER MA KING A REFERENCE TO THE DVO, AND COMPLETING THE ASSESSMENT ON THE BASIS OF THE V ALUATION SO RECEIVED FROM THE DVO. WHILE SO DECIDING THE MATTER AFRESH, THE A SSESSING OFFICER WILL DECIDE ITA NO. 3295/AHD/2016 AMUL RESEARCH & DEVELOPMENT ASSOCIATION VS. ITO ASSESSMENT YEAR: 2011-12 PAGE 10 OF 10 THE MATTER IN ACCORDANCE WITH THE LAW, BY WAY OF A SPEAKING ORDER AND AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. WE DIRECT SO. 10. AS THE MATTER IS BEING REMITTED TO THE FILE OF THE ASSESSING OFFICER, ALL OTHER ISSUES ARE LEFT OPEN. THE ASSESSEE IS AT LIBERTY T O RAISE THESE ISSUES BEFORE THE ASSESSING OFFICER AND HE WILL DISPOSE OF THE SAME B Y WAY OF A SPEAKING ORDER IN ACCORDANCE WITH THE LAW AND AFTER GIVING A FAIR AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ORDERED, ACCORDINGLY. 11. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATI STICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 11 TH JUNE, 2019 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 11 TH DAY OF JUNE, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER 5 PAGES MANUSCRIPTS OF HONBLE VP-ATTACHED........ ATTACHED....11.06.2019.... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 11.06.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .11.06.2019.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: .. 11.06.2019..... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . . 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......