Manoj Mittal, Delhi V. ACIT, New Delhi

ITA 4596/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5396 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Business income; Retrospective amendment; Fair market value; Valuation report; Deemed dividend; Capital Gains
• Section: 43CA; 43B; 50C; 2(22)(e); 205; 143(2); 139(1); 55A; 48; 13; 22; 69; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEM BER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO.-4596/DEL/2016 ASSESSMENT YEAR: 2010-11 MANOJ MITTAL H-1, ASHOK VIHAR, PHASE I, DELHI- 110052 VS . ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-19(1), NEW DELHI APPELLANT RESPONDENT ASSESSEE BY : SH. C.S.ANAND, C.A. REVENUE BY : MS. RAKHI VIMAL, SR. DR ORDER PER ANADEE NATH MISSHRA, A.M.: (A) THIS APPEAL FILED BY THE ASSESSEE IS AGAINST IMPUGN ED APPELLATE ORDER DATED 04.07.2016 PASSED BY THE LD. CIT (APPEALS)-12, NEW DELHI FOR ASSESSMENT YEAR 2010-11 . FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED : 1) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN SUSTAIN ING THE ADDITION OF RS.18,42,000/- MADE BY THE ASSESSING OFFICER U/S 2(22)(E) OF THE ACT WITHOUT APPRECIATING THAT THERE WERE NIL ACCUMULATED PROFITS IN THE CASE OF THE PAYER COMPANY AS AT THE START OF THE YEAR. THAT THE ADDITION MADE U/S 2(22)(E) OF THE ACT IS UNTENABLE PER-SE. 2) THAT THE LEARNED CIT(APPEALS) HAS ERRED IN SUSTAIN ING THE 2 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ADDITION OF RS.50,000/- MADE BY THE ASSESSING OFFIC ER U/S 2(22)(E) OF THE ACT WITHOUT APPRECIATING THAT THERE WERE NIL AC CUMULATED PROFITS IN THE CASE OF THE PAYER COMPANY EITHER AT THE BEGINNI NG OF THE YEAR OR AT THE END OF THE YEAR, THAT THE ADDITION MADE U/S 2(2 2)(E) OF THE ACT IS UNTENABLE PER-SE. 3) THAT THE LEARNED CI T( APPEALS) HAS ERRED IN UPHOL DING THE ACTION OF SHE ASSESSING OFFICER IN MAKING A DISALLO W ANCE OF THE CLAIM OF SET OFF OF BROUGHT FORWARD CAPITAL LOSS AMOUNTIN G TO RS.3,61,646/- ON THE GROUND THAT THE ASSESSES HAS NOT FILED THE R ETURN OF INCOME FOR ASSESSMENT YEAR 2009-10, THAT THE ACKNOWLEDGMENT OF RETURN FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2O09-10 WAS FURNISHED BOTH BEFORE THE A.O. AS WELL AS THE CIT(APPEALS) AND THAT THE CIT (APPEALS) HAS ERRED I N REJECTING THE EXPLANATION OF THE ASSESSEE ONLY ON SUSPICION. 4) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN UPHOLDING THE ADDITION OF RS.49,000/- MADE BY THE ASSESSING OFFIC ER UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 5) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN SUST AINING AN ADDITION OF RS.2,15,000/- OUT OF A TOTAL ADDITION O F RS.4,60,000/- INADE BY THE ASSESSING OFFICER U/S 69 OF THE ACT. 6) THAT THE LEARNED CI T( APPEALS) HAS ERRED IN SUSTA INING AN ADDITION OF RS. 1,38,000/- OUT OF TOTAL ADDITION OF RS.34,00,000/- MNDE BY THE ASSESSING OFFICER U/S 50-C OF THE ACT. 7) THAT THE APPELLANT CRAVES THE RIGHT TO AMEND, APPEN D, DELETE ANY OR ALL GROUNDS OF APPEAL. (B) ASSESSMENT ORDER DATED 08.03.2013 WAS PASSE D BY THE ASSESSING OFFICER WHEREIN, INTER ALIA, THE FOLL OWING ADDITIONS WERE MADE (I) ADDITION OF RS. 18,42,000/- ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF INCOME TAX ACT (II) ADDITION OF RS. 50,000/- ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) (III) DISALLOWANCE OF ASSESSEES CLAIM OF BROUGHT 3 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) FORWARD CAPITAL LOSS AMOUNTING TO RS. 3,61,616/- IV ) ADDITION OF RS. 49,000/- UNDER THE HEAD INCOME FRO M HOUSE PROPERTY (V) ADDITION OF RS. 4,60,000/- U/S 69 OF INCOME TAX ACT ADDITION OF RS. 34,00,000/- U/S 50C OF INCOME TAX ACT. (B.1) RELEVANT PORTION OF THE ASSESSMENT ORDER I S REPRODUCED AS UNDER FOR THE EASE OF REFERENCE: 4 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 5 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 6 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 7 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) (C) THE ASSESSEE FILED APPEAL BEFORE THE LD. CI T(A). THE LD. CIT(A), VIDE IMPUGNED APPELLATE ORDER DATED 04. 07.2016 CONFIRMED THE AFORESAID ADDITIONS OF RS. 49,000/- ( UNDER THE HEAD INCOME FROM HOUSE PROPERTY); RS. 18,42,000/- (ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF INCOME T AX ACT); RS. 50,000/- (ON ACCOUNT OF DEEMED DIVIDEND U/S 2(2 2)(E) OF INCOME TAX ACT); AND RS. 3,61,646/- (ON ACCOUNT OF DISALLOWANCE OF BROUGHT FORWARD CAPITAL LOSS). HOWE VER, THE LD. CIT(A) ALLOWED PARTIAL RELIEF IN RESPECT OF THE AFORESAID ADDITIONS MADE U/S 69 OF INCOME TAX ACT AND SECTION 50C OF INCOME TAX ACT. THE RELEVANT PORTION OF THE ORDE R OF LD. CIT(A) IS REPRODUCED AS UNDER :- 8 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 9 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 10 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 11 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) (D) THIS PRESENT APPEAL HAS BEEN FILED BY THE ASSES SEE AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATE D 04.07.2016 OF LD. CIT(A). IN THE COURSE OF APPELLAT E PROCEEDINGS IN INCOME TAX APPELLATE TRIBUNAL TWO PA PER BOOKS CONTAINING THE FOLLOWING PARTICULARS WERE FIL ED FROM THE ASSESSEE SIDE :- S. NO. PARTICULARS 1. ITR ACK. FOR A.Y. 2010 - 11 WITH AUDITED BALANCE SHEET AS AT 31.03.2010 OF M/S. MITTAL CONSTRUCTION AND REAL ES TATE PVT. LTD. 2. ITR ACK. FOR A.Y.2010-11 WITH AUDITED BALANCE SH EET AS AT 31.03.2010 OF M/S ALUMNI MANAGEMENT COMPANY PVT. LTD. 3. ASSESSEES LETTER DT. 29.11.2012, THROUGH WHICH ITR ACK. FOR A.Y. 2009-10 BEARING NO. 1933002301 WAS FILED . 4. ITR ACK. FOR A.Y.2009 - 10 BEARING NO. 1933002301 , SHOWING LTCL OF RS.3,61,646/- TO BE C/F 5. SELF ASSESSMENT TAX CHALLAN OF RS. 399/-BEARING S.NO.00007, BSR CODE 0290966 (DATE OF PAYMENT 27.07.2009) FOR A.Y.2009-10 6. LEASE DEED DT.07.01.1993 BETWEEN SH. NARESH MOHA N MITTAL AND SH. MANOJ MITTAL (ASSESSEE) IN R/O UNIT NO. G/F- 4 OF PROPERTY NO. F-18 KAMLA NAGAR, DELHI 7. LEASE DEED DT.07.01.1993 BETWEEN SH.NARESH MOHAN MITTAL AND SH. MANOJ MITTAL (ASSESSEE) IN R/O UNIT NO. 12 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) G/F-5 OF PROPERTY NO. F-18 KAMLA NAGAR, DELHI 8. BANK STATEMENT OF SIDHARTHA MITTAL 9. BANK STATEMENT OF KUSHI MITTAL 10. COPY OF CBDT CIRCULAR NO 19/2017 DATED 12.06.20 17 11. COPY OF JUDGEMENT IN THE CASE OF CIT VS. SUNIL SETH I ITA 569/2009 DELHI HIGH 12. COPY OF JUDGEMENT IN THE CASE OF ACIT VS. SEEMA DEVI BANSAL 13. COPY OF JUDGEMENT IN THE CASE OF CIT VS. CREATI VE DYEING AND PRINTING P. LTD. 318 ITR 476(DEL) DELHI HIGH CO URT 14. COPY OF JUDGEMENT IN THE CASE OF CIT VS. ARVIND KUMAR JAIN 205 TAXMAN 44(DEL) DELHI HIGH COURT 15. COPY OF JUDGEMENT IN THE CASE OF RAHUL CONSTRUC TIONS VS. DCIT 38 DTR (A.T) 19 ITAT PUNE 16 . COPY OF JUDGEMENT IN THE CASE OF SITA BAI KHETAN VS. ITO 50 ITR (TRIB) 196 ITATJAIPUR 17. COPY OF JUDGEMENT IN THE CASE OF JOHN FOWLER (I NDIA) PVT. LTD. VS. DCIT I.T.A NO. 7545/MUM/2014 ITAT MUMBAI 18. COPY OF JUDGEMENT IN THE CASE OF CIT VS. ALOM E XTRUSIONS LTD. 319 ITR 306(SC) SUPREME COURT OF INDIA 19. COPY OF JUDGEMENT IN THE CASE OF DHARAMHIBHAI S ONANI VS. ACIT I.T.A NO. 1237/AHD/2013 ITAT AHMEDABAD 20 . COPY OF JUDGEMENT IN THE CASE OF JITENDRA R. PATEL VS. DCIT ITA NO. 1932/AHD/2013 ITAT AHMEDABAD 21. COPY OF JUDGEMENT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP P. LTD. 377 ITR 635 (DEL) DELHI HIGH COURT 22 . COPY OF JUDGEMENT IN THE CASE OF CIT VS. CALCUTTA EXP ORT COMPANY 404 ITR 654 (SC) SUPREME COURT OF INDIA (D.1) IN ADDITION, COPY OF ORDER OF INCOME TAX APP ELLATE TRIBUNAL, DATED 09.08.2019, IN THE CASE OF CHANDRA PRAKASH JHUNJHUNWALA VS. DCIT FOR A.Y. 2014-15 ITA NO. 2351/KOL/2017 WAS ALSO FILED FROM THE ASSESSEES SI DE. FURTHER, A SYNOPSIS WAS ALSO FILED FROM THE ASSESSE E SIDE RELEVANT PORTION OF WHICH IS REPRODUCED AS UNDER : 13 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 14 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 15 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 16 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) (D.2) AT THE TIME OF HEARING BEFORE US, THE LD. AUTHORISED REPRESENTATIVE (AR FOR SHORT) OF THE ASS ESSEE TOOK US THROUGH THE CONTENTS OF THE AFORESAID TWO P APER BOOKS (MENTIONED IN FOREGOING PARAGRAPH (D) OF THIS ORDER AND PLACED RELIANCE ON THE SUBMISSIONS MADE IN THE AFORESAID SYNOPSIS (REFERRED TO IN FOREGOING PARAGR APH (D.1) OF THIS ORDER). MOREOVER, FOR THE GROUND 6 OF THIS APPEAL, THE LD. COUNSEL ALSO PLACED RELIANCE ON AFORESAID ORDER IN THE CASE OF CHANDRA PRAKASH JHUNJHUNWALA VS. DCIT (SUPR A). LD. SENIOR DEPARTMENTAL REPRESENTATIVE (LD. SR.DR , FOR SHORT) PLACED RELIANCE ON THE IMPUGNED APPELLATE OR DER DATED 04.07.2016 OF THE LD. CIT(A). WE HAVE HEARD B OTH SIDES PATIENTLY. WE HAVE PERUSED MATERIALS ON RECOR D CAREFULLY. WE HAVE CONSIDERED THE PRECEDENTS REFERR ED TO IN THE RECORDS OR BROUGHT TO OUR ATTENTION IN THE COUR SE OF APPELLATE PROCEEDINGS IN ITAT. WE PROCEED TO DECIDE THE VARIOUS GROUNDS OF APPEAL AS UNDER. (E) FIRST GROUND OF APPEAL IS IN RESPECT OF ADDI TION OF RS. 18,42,000/- ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF INCOME TAX ACT. ALTHOUGH IT WAS CONTEND ED ON 17 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) BEHALF OF THE ASSESSEE THAT THIS AMOUNT WAS RECEIVE D BY THE ASSESSEE IN THE COURSE OF REGULAR COURSE OF BUS INESS FROM M/S. MITTAL CONSTRUCTION & REAL ESTATE PVT. L TD. DON 09.02.2010; THE AUTHORISED REPRESENTATIVE OF TH E ASSESSEE FAILED TO BRING ANY MATERIAL TO OUR NOTICE TO SUPPORT THE CONTENTION THAT TRANSACTION OF RS. 18,42,000/- WAS MADE IN THE REGULAR COURSE OF BUSIN ESS. THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE CLAIM, THAT THE TRANSACTION WAS MADE IN THE NORMAL COURSE OF BUSINESS, NOT ONLY DURING THE ASSESSMENT PROCEEDING S BEFORE THE ASSESSING OFFICER; BUT ALSO DURING APPEL LATE PROCEEDINGS BEFORE LD. CIT(A) AND ALSO DURING THE APPELLATE PROCEEDINGS IN ITAT. THEREFORE WE REJECT THIS CONTENTION OF THE ASSESSEE AND HOLD THAT SECTION 2( 22)(E) OF INCOME TAX ACT IS ATTRACTED. HOWEVER, WE HAVE CONSIDERED THE ALTERNATE CONTENTION OF THE LD. COUN SEL FOR ASSESSEE, THAT THE ADDITION BE RESTRICTED TO ACCUMULATED PROFITS WITHIN THE MEANING OF SECTION 2(22)(E) OF I.T. ACT. THE LD. SR. DR ALSO WAS IN AGREEMENT WITH THIS ALTERNATE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. AS PER SECTION 2(22)(E) OF INCOME TAX ACT, THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND IS TO BE RESTRICTED TO ACCUMULATED PROFITS . AS BOTH SIDES AGREE TO THIS, WE DIRECT THE ASSESSIN G OFFICER TO COMPUTE ACCUMULATED PROFITS (POSSESSED B Y M/S. MITTAL CONSTRUCTION & REAL ESTATE PVT. LTD.) A S PER LAW, AND RESTRICT THE ADDITION U/S 2(22)(E) ON ACCO UNT OF DEEMED DIVIDEND TO THE EXTENT OF AFORESAID ACCUMULA TED 18 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) PROFITS. FOR THE LIMITED PURPOSE OF COMPUTATION OF AFORESAID ACCUMULATED PROFITS AS PER LAW, THIS ISSU E IS REMANDED TO THE FILE OF THE ASSESSING OFFICER, FOR FRESH ORDER AS PER LAW IN ACCORDANCE WITH AFORESAID DIREC TION. (II) THE 2 ND GROUND OF APPEAL IS REGARDING ADDITION OF RS. 50,000/- ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF INCOME TAX ACT ON ACCOUNT OF LOAN RECEIVED FROM M/S . ALUMNI MANAGEMENT CO. PVT. LTD. ON PERUSAL OF RECOR DS IT IS FOUND THAT THERE WAS NO ACCUMULATED PROFIT (A S PER BALANCE SHEET AS ON 31.03.2010) POSSESSED BY M/S. ALUMNI MANAGEMENT CO. PVT. LTD. AS THE ADDITION OF DEEMED DIVIDEND U/S 2(22)(E) IS TO BE RESTRICTED TO ACCUMULATED PROFITS, THERE IS NO CASE FOR ANY ADDIT ION, IN VIEW OF FOREGOING FACTS AND CIRCUMSTANCES, IN THE H ANDS OF THE ASSESSEE ON ACCOUNT OF AFORESAID TRANSACTION OF RS. 50,000/- WITH M/S. ALUMNI MANAGEMENT CO. PVT. LTD. WE DIRECT THE ASSESSING OFFICER TO DELETE THIS ADDITION OF RS. 50,000/- MADE U/S 2(22)(E) OF IT AC T. (III) 3 RD GROUND OF APPEAL IS ON ACCOUNT OF THE ACTION OF THE ASSESSING OFFICER TO DISALLOW ASSESSEES CLAIM OF SET OFF OF BROUGHT FORWARD CAPITAL LOSS AMOUNTING TO RS . 3,61,646/- ON THE GROUND THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME (ROI, FOR SHORT) FOR ASSESSMENT YEAR 2009-10. LD. CIT(A) HAS CONFIRMED THE ACTION ON THE GROUND THAT THE DATE OF FILING OF ROI IS NOT VISIBL E ON THE STAMP. HOWEVER, PERUSAL OF RECORDS SHOWS THAT THE 19 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ASSESSEE HAD FILED ROI FOR ASSESSMENT YEAR 2009-10, BEARING ACKNOWLEDGEMENT NO. 1933002301 IN THE OFFIC E OF ITO, WARD 19(2), NEW DELHI; WHEREIN CLAIM FOR L ONG TERM CAPITAL LOSS OF RS. 3,61,646/- TO BE CARRY FOR WARD HAS BEEN MADE. THEREFORE, THE BASIS ON WHICH THE ASSESSEES CLAIM FOR BROUGHT FORWARD CAPITAL LOSS H AD BEEN REJECTED BY THE ASSESSING OFFICER IS INCORRECT . FURTHER, IF THE DATE OF FILING OF ROI IS NOT CLEARL Y VISIBLE IN THE STAMP; IT IS NOT THE FAULT OF THE ASSESSEE. THE ASSESSEE DOES NOT BRING ITS OWN ACKNOWLEDGEMENT STA MP TO BE FIXED ON ROI; AND THE ASSESSEE DOES NOT HIMSE LF FIX THE STAMP. IT IS A STAMP OF INCOME TAX DEPARTMENT, AND THE STAMP IS FIXED BY OFFICIALS OF INCOME TAX DEPAR TMENT. IF THE DATE OF ACKNOWLEDGEMENT IS NOT CLEARLY VISIB LE IN THE ROI; IT IS THE MISTAKE OF REVENUE OFFICIALS. EV EN WHEN THE DATE OF RECEIPT OF ROI IN INCOME TAX DEPARTMENT IS NOT CLEARLY VISIBLE IN THE ACKNOWLEDGEMENT; IT IS E ASY FOR REVENUE OFFICIALS TO ASCERTAIN DATE OF RECEIPT FROM REFERENCE TO RECORDS OF INCOME TAX DEPARTMENT. WE RECORD OUR DISPLEASURE THAT NO EFFORT WAS MADE DURI NG APPELLATE PROCEEDINGS BEFORE LD. CIT(A) TO ASCERTAI N THIS DATE. WE DIRECT THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM FOR LONG TERM CAPITAL LOSS AMOUNTI NG TO RS. 3,61,646/- UNLESS THERE IS EVIDENCE IN RECORDS OF INCOME TAX DEPARTMENT TO SHOW THAT THE RETURN FOR ASSESSMENT YEAR 2009-10 WAS NOT FILED BY THE ASSESS EE WITHIN PRESCRIBED TIME LIMIT U/S 139(1) OF INCOME T AX ACT. FOR THIS LIMITED PURPOSE, THIS ISSUE IS REMAND ED TO 20 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) THE FILE OF THE ASSESSING OFFICER FOR FRESH ORDER A S PER LAW IN ACCORDANCE WITH OUR AFORESAID DIRECTION. (IV) 4 TH GROUND OF APPEAL IS IN RESPECT OF ADDITION OF RS. 49,000/- MADE BY THE ASSESSING OFFICER UNDER THE HE AD INCOME FROM HOUSE PROPERTY. THE ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE GROUND THAT PROPERT IES AT SHOP NO. 4 AND 5 AT KAMLA NAGAR; ALTHOUGH NOT OCCUPIED BY THE ASSESSEE, WAS TO BE DEEMED TO BE LE T OUT. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) T HAT THE ASSESSEE WAS NOT OWNER OF THESE PROPERTIES, AND HAD ALSO NOT GOT POSSESSION OF THE PROPERTY AND, THEREF ORE, THERE WAS NO BASIS TO ADD INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY, IN THE HANDS OF ASSES SEE IN RESPECT OF THESE PROPERTIES. HOWEVER, THE LD. CI T(A) TOOK THE VIEW THAT THE ASSESSEE WAS TO BE TREATED A S OWNER OF THE PROPERTIES U/S 269 UA OF INCOME TAX AC T AS THE ASSESSEE HAD ENTERED INTO THE LEASE AGREEMEN T WITH SH. N.M. MITTAL FOR A PERIOD OF 30 YEARS IN RE SPECT OF THESE PROPERTIES. ON PERUSAL OF MATERIALS BEFORE US, WE FIND THAT THE LEASE DEED BETWEEN SH. NARESH MOHA N MITTAL AND THE ASSESSEE, DATED 7 TH JANUARY, 1993 WAS FOR A PERIOD OF 4 YEARS ONLY, AND NOT FOR 30 YEARS AS ALLEGED BY THE LD. CIT(A). THEREFORE, SECTION 269UA (2)(F) HAS NO APPLICATION TO THE FACTS OF THE CASE. MOREOV ER, THIS IS NOT A CASE OF PURCHASE OF THE PROPERTIES BY CENTRAL GOVERNMENT UNDER CHAPTER XX-C OF I.T.ACT; A ND THEREFORE, IN ANY CASE, S. 269 UA HAS NO APPLICATIO N TO 21 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) FACTS OF THIS CASE. THUS, THE LD. CIT(A) WAS IN ERR OR, BOTH ON FACTS AS WELL AS IN LAW, IN CONFIRMING THE AFORESAID ADDITIONS OF RS. 49,000/-. IN VIEW OF THE FOREGOING, THE AFORESAID ADDITION OF RS. 49,000/- H AS NO LEGS TO STAND, AND WE ACCORDINGLY DIRECT THE ASSESS ING OFFICER TO DELETE THIS ADDITION. (V) 5 TH GROUND OF APPEAL IS IN RESPECT OF ADDITION OF RS. 4,60,000/- MADE BY THE ASESSING OFFICER U/S 69 OF T HE INCOME TAX ACT; OUT OF WHICH AN ADDITION OF RS. 2,15,000/- WAS SUSTAINED BY THE LD. CIT(A) AND THE REMAINING AMOUNT WAS DELETED. THE AFORESAID ADDITIO N OF RS. 2,15,000/- HAS BEEN SUSTAINED BY THE LD. CIT (A) ON ACCOUNT OF CASH DEPOSIT MADE IN THE BANK ACCOUNT S OF MINOR CHILDREN OF THE ASSESSEE, MASTER SIDHARTH MITTAL AND MISS KHUSHI MITTAL. AT THE TIME OF HEARI NG BEFORE US, IT WAS BROUGHT TO OUR NOTICE BY THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT THE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE AFORESAID TWO MINOR CHILDREN OF THE ASSESSEE ARE OF VERY INSIGNIF ICANT AND SMALL AMOUNTS. HE FURTHER SUBMITTED THAT THE DEPOSITS WERE MADE OUT OF GIFTS RECEIVED BY THE TWO MINOR CHILDREN ON CEREMONIAL OCCASIONS, SUCH AS BIRTHDAYS. THIS CONTENTION OF THE LD. A.R. WAS NOT DISPUTED BY THE LD. DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING BEFORE US. HOWEVER, SHE RELIED ON T HE ORDER OF THE LD. CIT(A). WE FIND THAT VERY SMALL DE POSITS OF INSIGNIFICANT AMOUNTS WERE MADE IN THE BANK 22 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ACCOUNTS OF THE TWO MINOR CHILDREN OF THE ASSESSEE. THE LD. CIT(A) HAS REJECTED THE CLAIM MADE BY THE ASSES SEE THAT THESE INSIGNIFICANT AMOUNTS WERE RECEIVED BY T HE MINOR CHILDREN ON CEREMONIAL OCCASION SUCH AS BIRTHDAYS. HAVING REGARD TO THE FACT THAT THE AMOUN TS ARE VERY SMALL AND INSIGNIFICANT IN NATURE; AND FUR THER, THAT IT IS CUSTOMARY AND COMMON PRACTICE IN SOCIETY TO MAKE GIFTS TO THE CHILDREN ON CEREMONIAL OCCASIONS SUCH AS BIRTHDAYS; WE DIRECT THE ASSESSING OFFICER TO RECONSIDER THE MATTER; AND TO TREAT A REASONABLE AM OUNT OUT OF AFORESAID RS. 2,15,000/- AS EXPLAINED THROUG H GIFTS RECEIVED BY THE MINOR CHILDREN ON CEREMONIAL OCCASIONS SUCH AS BIRTHDAYS. FOR THIS LIMITED PURPO SE, THIS ISSUE IS REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ORDER IN ACCORDANCE WITH OUR AFOR ESAID DIRECTION. NEEDLESS TO SAY, THE AO WILL GIVE DUE CONSIDERATION TO ECONOMIC AND SOCIAL STATUS OF THE ASSESSEE; AND TO THE PREVAILING SOCIAL CUSTOMS AND USAGE. (VI) THE LAST GROUND OF APPEAL IS ON ACCOUNT OF A DDITION OF RS. 34,00,000/- MADE BY THE ASSESSING OFFICER U /S 50C OF INCOME TAX ACT, OUT OF WHICH AN AMOUNT OF RS . 1,38,000/- WAS SUSTAINED BY THE LD. CIT(A) AND THE REMAINING AMOUNT WAS DELETED BY HER. THE ADDITION W AS MADE IN RESPECT OF IMMOVABLE PROPERTY SOLD BY THE ASSESSEE. THE SALE CONSIDERATION OF THE PROPERTY AS PER SALE DEED WAS RS. 70,00,000/- WHEREAS VALUATION AS PER 23 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) STAMP VALUATION AUTHORITY WAS RS. 1, 04,00,000/-. T HE DIFFERENCE OF RS. 34,00,000/- WAS ADDED TO THE INCO ME OF THE ASSESSEE BY THE ASSESSING OFFICER VIDE IMPUG NED APPELLATE ORDER DATED 04/07/2016 OF THE LD. CIT(A). THE LD. CIT(A) RESTRICTED THE ADDITION TO RS. 1,83, 000/- ON THE BASIS OF VALUATION REPORT OF DVO IN WHICH VA LUE OF THE PROPERTY WAS DETERMINED AT RS. 71,83,000/- A S AGAINST AFORESAID RS. 1,04,00,000/-. IN THE COURSE OF APPELLATE PROCEEDINGS IN ITAT, IT IS THE CASE OF TH E ASSESSEE THAT THE DIFFERENCE OF RS. 1,83,000/- BETW EEN VALUE DETERMINED BY THE DVO AND SALE CONSIDERATION AS PER SALE DEED, IS LESS THAN 5% OF THE AFORESAID SAL E CONSIDERATION OF RS. 70,00,000/- (AS PER SALE DEED) ; AND IT IS CONTENDED ON BEHALF OF THE ASSESSEE, THAT THE ASSESSEE IS ENTITLED TO BENEFIT UNDER 3 RD PROVISO TO SECTION 50C(1) OF INCOME TAX ACT. IT WAS CONTENDED BY THE LD. AR OF THE ASSESSEE THAT ALTHOUGH 3 RD PROVISO TO SECTION 50C(1) OF INCOME TAX ACT HAS BEEN INSERTED BY FINANCE ACT, 2018 WITH EFFECT FROM 01.04.2019, IT I S RETROSPECTIVE IN APPLICATION, AND THE ASSESSEE IS ENTITLED TO ITS BENEFIT. FOR THIS PROPOSITION, THE LD. AR OF THE ASSESSEE RELIED ON THE ORDER OF INCOME TAX APPELLAT E TRIBUNAL IN THE CASE OF CHANDRA PRAKASH JHUNJHUNWALA VS. DCIT, RELEVANT PORTION OF WHICH IS REPRODUCED AS UNDER :- 3. GROUND NO. 1 RAISED BY THE ASSESSEE RELATES TO ADDITION MADE BY THE ASSESSING OFFICER OF RS. 12,01,950/- U/S 50C OF THE ACT. 24 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 4. BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. NIL AND CLAIME D CURRENT YEAR LOSS OF RS. 1,19,46,383/-. THE ASSESSEE'S CASE HAS BEEN SELECTED FOR SCRUTINY THROUGH CASS. NOTICE U/S 143(2) WAS ISSUED ON 22.04.2016 ALONG WITH QUESTIONNAIRES AND SERVED UPON THE ASSES SEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON PERUSAL OF THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE YEAR ENDED 31.03.20 14 ALONG WITH ITS COMPUTATION OF INCOME FOR THE A.Y. 2014-15, IT WAS NOTICED BY ASSESSING OFFICER THAT, THE ASSESSEE HAD DECLARED L ONG TERM CAPITAL GAIN OF RS. 1,22,63,576/- AGAINST SALE OF PROPERTY AT PRETORIA STREET, KOLKATA ON 14.12.2013. DURING THE COURSE OF ASSESSM ENT PROCEEDING, THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF PR OPERTY SOLD ALONG WITH COPY OF SALE DEED AND OTHER RELEVANT SUPPORTIN G DOCUMENTS REGARDING THE INDEXATION COST CLAIMED WHILE COMPUTI NG LONG TERM CAPITAL GAIN. THE A.R. OF THE ASSESSEE THROUGH HIS LETTER DATED 21.04.2016 SUBMITTED THE COPY OF SALE DEED OF THE S AID PROPERTY. ONGOING THROUGH, THE DETAILS SUBMITTED BY THE ASSES SEE, IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD SOLD A PROP ERTY ON 14.12.2013 TO M/S SRISHTI PROPERTIES (PARTNERSHIP F IRM), FOR A TOTAL SALE CONSIDERATION OF RS. 3,15,00,000/-. THE ASSESS EE STATED THAT DIVIDED AND DEMARCATED PORTION MEASURING ABOUT 3300 SQ. FT. SUPER BUILT UP AREA CONSISTING OF 2952 SQ. FT. COVERED SU PER BUILT UP AREA AND 348 SQ. FT OPEN TERRACE ON THE 4TH FLOOR OF THE BUILDING BUILT AND CONSTRUCTED ON LAND MEASURING ABOUT 2 BIGHAS AND 2 COTTAHS TOGETHER WITH STRUCTURES STANDING THEREON SITUATED AT MUNICI PAL PREMISES NO. 7B, HARENDRA KUMAR SARANI (FORMERLY PRETORIA STREET ), P.S. SHAKESPEARE SARANI, KOLKATA-700071 ALONG WITH ONE N O. COVERED CAR PARKING SPACE BEARING NO. 1 ON GROUND FLOOR. FURTHE R IT WAS FOUND THAT THE MARKET VALUE OF THE SAID PROPERTY AS PER S TAMP DUTY AUTHORITY IS RS. 3,27,01,950/-. 5. THE ASSESSING OFFICER NOTICED THAT IN LIGHT OF T HE ABOVE FINDINGS, THE ISSUE OF SALE OF PROPERTY BY THE ASSESSEE ATTRA CTS THE PROVISION OF SECTION 50C OF THE ACT AS THE SALE CONSIDERATION RECEIVED AS A RESULT OF THE TRANSFER OF A CAPITAL ASSET IS LESS T HAN THE MARKET VALUE AS PER STAMP DUTY VALUATION. THE ASSESSEE WAS ASKED IN COURSE OF HEARING TO EXPL AIN AS TO WHY THE PROVISIONS OF SECTION 50C OF THE ACT SHOULD NOT BE INVOKED IN CASE OF THE ASSESSEE REGARDING THE SALE PROPERTY AT PRETORI A STREET, KOLKATA AND WHY THE FULL VALUE OF CONSIDERATION RECEIVED AS A RESULT OF THE SAID TRANSFER SHOULD NOT BE TAKEN AT RS. 3,27,01,95 0/- (MARKET VALUE AS PER STAMP DUTY AUTHORITY) IN PLACE OF RS. 3,15,0 0,000/- (SALE CONSIDERATION RECEIVED AS PER THE ASSESSEE). IN RESPONSE, THE ASSESSEE FURNISHED HIS SUBMISSION DATED 20.06.2016. RELEVANT EXTRACT OF THE SAID REPLY IS FURNISHED AS UNDER: 25 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ' THE ASSESSEE HAS SOLD PROPERTY DURING THE YEAR VI DE CONVEYANCE DATED 14TH DECEMBER, 2013 FOR A CONSIDERATION OF RS . 3,15,00,000/- AS AGAINST THE MARKET VALUE OF THE PROPERTY AT RS. 3,27,01,950/- AND IT HAS BEEN ASKED TO EXPLAIN AS TO WHY THE PROVISION O F SECTION 50C SHALL NOT APPLY. THE ASSESSEE IS OBJECTING THE VALU E OF THE PROPERTY FOR VALUATION AT THE MARKET RATE AT RS. 3,27,01,950 /- FOR VARIOUS REASONS AND THEREFORE THE SAME MAY BE REFERRED TO T HE DVO FOR FRESH VALUATION.' THE SUBMISSION OF THE ASSESSEE HAD BEEN PERUSED BY ASSESSING OFFICER AND ACCORDINGLY A REFERENCE HAD BEEN MADE O N 5.12.2016 TO THE DVO FOR DETERMINATION OF FAIR MARKET VALUE OF T HE SAID PROPERTY U/S 55A READ WITH SECTION 50C(2) OF THE ACT. BUT NO REPORT HAD BEEN RECEIVED FROM THE DVO WITHIN THE TIME SOUGHT FOR. H ENCE THE PROVISION OF SECTION 50C OF THE ACT IS BEING INVOKED IN CASE OF THE ASSESSEE AND THE VALUE AS PER STAMP DUTY AUTHORITY IS BEING ADOPTED AS THE FULL VALUE OF CONSIDERATION RECEIVED FOR THE PURPOSE OF COMPUTATION LONG TERM CAPITAL GAIN. HENCE, IN THE C ASE OF THE ASSESSEE, THE MARKET VALUE OF RS.3,27,01,950/- (AS PER STAMP DUTY VALUATION) WAS CONCERNED AS THE FULL VALUE OF CONSI DERATION RECEIVED AS A RESULT OF THE TRANSFER / SALE OF PROPERTY BY T HE ASSESSEE. SO, AN AMOUNT OF RS. 12,01,950/- (DIFFERENCE OF RS. 3,27,0 1,950/- - RS. 3,15,00,000/-) WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY INVOKING SECTION 50C OF THE ACT. 6. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. AGGRIEV ED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LD. DR HAS PRIMARILY REITERATED THE STAND TA KEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREADY NOTED IN OU R EARLIER PARA AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY AND ON THE OTHER HAND THE LD. COUNSEL HAS RELIED ON THE SUBMIS SIONS MADE BEFORE THE AUTHORITIES BELOW. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD.FIRST OF ALL, IT IS WORTHWHILE TO GO THRO UGH THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT 1961, WHICH IS GIVEN BELOW T O THE EXTENT APPLICABLE FOR OUR DISCUSSION: ' SECTION 50C :SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE, BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORI TY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFE R, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, FOR THE PU RPOSES OF SECTION 26 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATI ON RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXIN G THE AMOUNT OF CONSIDERATION AND THE DATE OF REGISTRATION FOR THE TRANSFER OF THE CAPITAL ASSET ARE NOT THE SAME, THE VALUE ADOPTED O R ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY ON THE DATE OF AGREEMENT MAY BE TAKEN FOR THE PURPOSES OF COMPUTING FULL VAL UE 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 . THE FOLLOWING PROVISO SHALL BE INS. BY FINANCE ACT , 2018 (W.E.F. 1-4- 2019): PROVIDED ALSO THAT WHERE THE VALUE ADOPTED OR ASSES SED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY DOES NOT EXCEED ON E HUNDRED AND FIVE PER CENT OF THE CONSIDERATION RECEIVED OR ACCR UING AS A RESULT OF THE TRANSFER, THE CONSIDERATION SO RECEIVED OR ACCR UING AS A RESULT OF THE TRANSFER SHALL, FOR THE PURPOSES OF SECTION 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION. THIS AMENDMENT, (BY WAY OF INSERTION OF THIRD PROVI SO IN SECTION 50C OF THE ACT), WAS EXPLAINED, IN THE MEMORANDUM EXPL AINING THE PROVISIONS OF FINANCE BILL 2018, AS FOLLOWS: 'AT PRESENTWHILE TAXING INCOME FROM CAPITAL GAINS ( SECTION 50C ), BUSINESS PROFITS ( SECTION 43CA ) AND OTHER SOURCES ( SECTION 56 ) ARISING OUT OF TRANSACTIONS IN IMMOVABLE PROPERTY, THE SALE CONSIDERATION OR STAMP DUTY VALUE, WHICHEVER IS HIG HER IS ADOPTED. THE DIFFERENCE IS TAXED AS INCOME BOTH IN THE HANDS OF THE PURCHASER AND THE SELLER. IT HAS BEEN POINTED OUT THAT THIS V ARIATION CAN OCCUR IN RESPECT OF SIMILAR PROPERTIES IN THE SAME AREA BECA USE OF A VARIETY OF FACTORS, INCLUDING SHAPE OF THE PLOT OR LOCATION. I N ORDER TO MINIMIZE HARDSHIP IN CASE OF GENUINE TRANSACTIONS IN THE REA L ESTATE SECTOR, IT IS PROPOSED TO PROVIDE THAT NO ADJUSTMENTS SHALL BE MA DE IN A CASE WHERE THE VARIATION BETWEEN STAMP DUTY VALUE AND TH E SALE CONSIDERATION IS NOT MORE THAT FIVE PER CENT OF THE SALE CONSIDERATION. THESE AMENDMENTS WILL TAKE EFFECT FROM 1ST APRIL, 2 019, AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSMENT YE AR 2019-20 AND THE SUBSEQUENT ASSESSMENT YEARS.' WE NOTE THAT THE FUNDAMENTAL PURPOSE OF INTRODUCING SECTION 50C WAS TO COUNTER SUPPRESSION OF SALE CONSIDERATION O N SALE OF IMMOVABLE PROPERTIES, AND THIS SECTION WAS INTRODUC ED IN THE LIGHT OF 27 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) WIDESPREAD BELIEF THAT SALE TRANSACTIONS OF LAND AN D BUILDING ARE OFTEN UNDERVALUED RESULTING IN LEAKAGE OF LEGITIMAT E TAX REVENUES. WE NOTE THAT THE VARIATION BETWEEN STAMP DUTY VALUE AND THE SALE CONSIDERATION ARISES BECAUSE OF MANY FACTORS, SOME OF THEM ARE GIVEN BELOW: (I).LOCATION OF PROPERTY. (II).NEAR BY PUBLIC AMENITIES. (III).FORCED SALE (IV). SIZE OF LAND AND BUILDING (V). NEARBY PUBLIC HIGHWAY/RAIL FACILITIES (VI).SHAPE OF THE PLOT OR LOCATION WE NOTE THATDIFFERENCE BETWEEN THE VALUE AS PER SAL E DEED AND THE VALUE AS PER STAMP DUTY VALUATION, ARISES AS A RESU LT OF MANY FACTORS, SOME OF THEM WE HAVE EXPLAINED ABOVE.WE NOTE THAT S TAMP DUTY VALUE AND THE SALE CONSIDERATION, THAT IS, THESE TW O VALUES REPRESENT THE VALUES AT TWO DIFFERENT POINTS OF TIME. IN A SI TUATION IN WHICH THERE IS SIGNIFICANT DIFFERENCE BETWEEN THE POINT O F TIME WHEN AGREEMENT TO SELL IS EXECUTED AND WHEN THE SALE DEE D IS EXECUTED, THEREFORE, SHOULD IDEALLY BE BETWEEN THE SALE CONSI DERATION 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 WHEN AGREEMENT TO SELL, WHEREBY SALE CONSIDERATION WAS I N FACT FIXED, BECAUSE, IF AT ALL ANY SUPPRESSION OF SALE CONSIDER ATION SHOULD BE ASSUMED, IT SHOULD BE ON THE BASIS OF STAMP DUTY VA LUATION AS AT THE POINT OF TIME WHEN THE SALE CONSIDERATION WAS FIXED . SECTION 50C MAKES A SPECIAL PROVISION FOR DETERMINING THE FULL VALUE OF CONSIDERATION IN CASES OF TRANSFER OF IMMOVABLE PRO PERTY. IT PROVIDES THAT WHERE THE CONSIDERATION DECLARED TO BE RECEIVE D OR ACCRUING AS A RESULT OF THE TRANSFER OF LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (I.E. 'STAMP VALUATION AUTHORITY') FOR T HE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL BE DEEMED T O BE THE FULL VALUE OF THE CONSIDERATION, AND CAPITAL GAINS SHALL BE COMPUTED ON THE BASIS OF SUCH CONSIDERATION UNDER SECTION 48 OF THE INCOME-TAX ACT. 9. WE NOTE THAT AT PRESENT WHILE TAXING INCOME FROM CAPITAL GAINS ( SECTION 50C ), BUSINESS PROFITS ( SECTION 43CA ) AND OTHER SOURCES ( SECTION 56 ) ARISING OUT OF TRANSACTIONS IN IMMOVABLE PROPERTY , THE SALE CONSIDERATION OR STAMP DUTY VALUE, WHICHEVER I S HIGHER IS ADOPTED. THE DIFFERENCE IS TAXED AS INCOME BOTH IN THE HANDS OF THE 28 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) PURCHASER AND THE SELLER. IT HAS BEEN POINTED OUT T HAT THIS VARIATION CAN OCCUR IN RESPECT OF SIMILAR PROPERTIES IN THE S AME AREA BECAUSE OF A VARIETY OF FACTORS, INCLUDING SHAPE OF THE PLOT O R LOCATION. IN ORDER TO MINIMIZE HARDSHIP IN CASE OF GENUINE TRANSACTION S IN THE REAL ESTATE SECTOR, IT WAS PROPOSED BY THE FINANCE ACT 2018, THAT NO ADJUSTMENTS SHALL BE MADE IN A CASE WHERE THE VARIA TION BETWEEN STAMP DUTY VALUE AND THE SALE CONSIDERATION IS NOT MORE THAT FIVE PER CENT OF THE SALE CONSIDERATION. THESE AMENDMENTS WI LL TAKE EFFECT FROM 1ST APRIL, 2019, AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSMENT YEAR 2019-20 AND SUBSEQUENT YEARS.WHILE THE GOVERNMENT HAS THUS RECOGNIZED THE GENUINE AND INTE NDED HARDSHIP IN THE CASES IN WHICH THERE IS MINOR VARIATION BETW EEN STAMP DUTY VALUE AND THE SALE CONSIDERATION. THAT IS WHY,THE FINANCE ACT 2018 INTRODUCED WELCOME AMENDMENTS TO THE STATUE TO TAKE THE REMEDIAL MEASURES. HOWEVER, WE NOTE THAT THIS BRINGS NO RELI EF TO THE ASSESSEE AS THE AMENDMENT IS INTRODUCED ONLY WITH PROSPECTIV E EFFECT FROM 1ST APRIL 2019. THERE CANNOT BE ANY DISPUTE THAT THIS A MENDMENT IN THE SCHEME OF SECTION 50C HAS BEEN MADE TO REMOVE AN INCONGRUITY, RESULTING IN UNDUE HARDSHIP TO THE ASSESSEE, AS IS EVIDENT FROM THE OBSERVATION OF MEMORANDUM EXPLAINING THE PROVISIONS OF FINANCE BILL 2018, AS NOTED ABOVE IN PARA NO. 8 OF THIS ORD ER. THE INCONGRUITY IN THE STATUTE WAS GLARING AND UNDUE HARDSHIP NOT I N DISPUTE. ONCE IT IS NOT IN DISPUTE THAT A STATUTORY AMENDMENT IS BEI NG MADE TO REMOVE AN UNDUE HARDSHIP TO THE ASSESSEE OR TO REMOVE AN A PPARENT 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 PRO POSITION, WE 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 TAXMANN.COM 45, 10.WE NOTE THAT NOW THE LEGISLATURE HAS BEEN COMPAS SIONATE ENOUGH TO CURE THESE SHORTCOMINGS OF PROVISION, AND THUS O BVIATE THE UNINTENDED HARDSHIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIV E AMENDMENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSP ECTIVE IN NATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY. HENCE THE INSERTION OF THIRD PROVISO TO SECTION 50C MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN THE RELATED LEGAL PROVISION WAS INTRODUCED, AS THIS AMENDMENT IS PROCEDURAL ONE TO COMPUTE THE VAL UE OF PROPERTY. AT THE COST OF REPETITION, WE AGAIN REPRODUCE THE T HIRD PROVISO TO SECTION 50C AS FOLLOWS: THE FOLLOWING PROVISO SHALL BE INS. BY FINANCE ACT , 2018 (W.E.F. 1-4- 2019): PROVIDED ALSO THAT WHERE THE VALUE ADOPTED OR ASSES SED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY DOES NOT EXCEED ON E HUNDRED AND FIVE PER CENT OF THE CONSIDERATION RECEIVED OR ACCR UING AS A RESULT OF 29 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) THE TRANSFER, THE CONSIDERATION SO RECEIVED OR ACCR UING AS A RESULT OF THE TRANSFER SHALL, FOR THE PURPOSES OF SECTION 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION. WE NOTE THAT THIS THIRD PROVISO RELATES TO DETERMIN ATION OF VALUE OF PROPERTY THEREFORE IT CANNOT BE A SUBSTANTIVE AMEND MENT. NORMALLY SUBSTANTIVE AMENDMENTS IN LAW IN APPLICABLE PROSPEC TIVE. IN VIEW OF THESE DISCUSSIONS, AS ALSO FOR THE DETAILED REASONS SET OUT EARLIER, IT IS A PROCEDURAL AMENDMENT IN LAW TO HELP THE ASSESSEE TO DETERMINE THE VALUE OR TO COMPUTE THE VALUE OF PROPERTY HENCE THI S AMENDMENT IS NOT TO PUNISH THE ASSESSEE JUST BECAUSE THERE IS MI NOR VARIATION BETWEEN STAMP DUTY VALUE AND THE SALE CONSIDERATION . WE NOTE THAT THE STATUTE SUCH AN AMENDMENT IN LAW, IN VIEW OF TH E WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIVE AMENDM ENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSP ECTIVE IN NATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, FOR T HAT WE RELY ON THE JUDGMENT OF THE HON`BLE SUPREME COURT IN THE CASE O F ALOM EXTRUSIONS LTD 185 TAXMAN 416 (SC) WHEREIN IT WAS H ELD AS FOLLOWS: '8. ON READING THE ABOVE PROVISIONS, IT BECOMES CLE AR THAT THE ASSESSEE(S)-EMPLOYER(S) WOULD BE ENTITLED TO DEDUCT ION ONLY IF THE CONTRIBUTION STANDS CREDITED ON OR BEFORE THE DUE D ATE GIVEN IN THE PROVIDENT FUND ACT . HOWEVER, THE SECOND PROVISO ONCE AGAIN CREATED FURTHER DIFFICULTIES. IN MANY OF THE COMPAN IES, FINANCIAL YEAR ENDED ON 31ST MARCH, WHICH DID NOT COINCIDE WITH TH E ACCOUNTING PERIOD OF R.P.F.C. FOR EXAMPLE, IN MANY CASES, THE TIME TO MAKE CONTRIBUTION TO R.P.F.C. ENDED AFTER DUE DATE FOR F ILING OF RETURNS. THEREFORE, THE INDUSTRY ONCE AGAIN MADE REPRESENTAT ION TO THE MINISTRY OF FINANCE AND, TAKING COGNIZANCE OF THIS DIFFICULTY, THE PARLIAMENT INSERTED ONE MORE AMENDMENT VIDE FINANCE ACT , 2003, WHICH, AS STATED ABOVE, CAME INTO FORCE WITH EFFECT FROM 1-4-2004. IN OTHER WORDS, AFTER 1-4-2004, TWO CHANGES WERE MADE, NAMELY, DELETION OF THE SECOND PROVISO AND FURTHER AMENDMEN T IN THE FIRST PROVISO, QUOTED ABOVE. BY THE FINANCE ACT , 2003, THE AMENDMENT MADE IN THE FIRST PROVISO EQUATED IN TERMS OF THE B ENEFIT OF DEDUCTION OF TAX, DUTY, CESS AND FEE ON THE ONE HAND WITH CON TRIBUTIONS TO EMPLOYEES' PROVIDENT FUND, SUPERANNUATION FUND AND OTHER WELFARE FUNDS ON THE OTHER. HOWEVER, THE FINANCE ACT , 2003, BRINGING ABOUT THIS UNIFORMITY CAME INTO FORCE WITH EFFECT FROM 1- 4-2004. THEREFORE, THE ARGUMENT OF THE ASSESSEE(S) IS THAT THE FINANCE ACT , 2003, WAS CURATIVE IN NATURE, IT WAS NOT AMENDATORY AND, THEREFORE, IT APPLIED RETROSPECTIVELY FROM 1-4-1988, WHEREAS THE ARGUMENT OF THE DEPARTMENT WAS THAT FINANCE ACT , 2003, WAS AMENDATORY AND IT APPLIED PROSPECTIVELY, PARTICULARLY WHEN THE PARLIA MENT HAD EXPRESSLY MADE THE FINANCE ACT , 2003, APPLICABLE ONLY WITH EFFECT FROM 1- 4-2004. IT WAS ALSO ARGUED ON BEHALF OF THE DEPARTMENT THAT EVEN BETWEEN 1-4-1988 AND 1-4-2004, PARLIAMENT HAD MAINTAINED A CLEAR DICHOTOMY BETWEEN PAYMENT OF TAX, DUTY, CESS OR FEE ON ONE HAND AND PAYMENT OF CONTRIBUTIONS TO THE WELFARE FU NDS ON THE OTHER. 30 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ACCORDING TO THE DEPARTMENT, THAT DICHOTOMY CONTINU ED UP TO 1-4- 2004, HENCE, LOOKING TO THIS ASPECT, THE PARLIAMENT CONSCIOUSLY KEPT THAT DICHOTOMY ALIVE UP TO 1-4-2004, BY MAKING FINANCE ACT , 2003, COME INTO FORCE ONLY WITH EFFECT FROM 1-4-2004. HEN CE, ACCORDING TO THE DEPARTMENT, FINANCE ACT , 2003 SHOULD BE READ AS AMENDATORY AND NOT AS CURATIVE [RETROSPECTIVE] WITH EFFECT FRO M 1-4-1988. 9. WE FIND NO MERIT IN THESE CIVIL APPEALS FILED BY THE DEPARTMENT FOR THE FOLLOWING REASONS: FIRSTLY, AS STATED ABOVE, SECTION 43B [MAIN SECTION], WHICH STOOD INSERTED BY FINANCE ACT , 1983, WITH EFFECT FROM 1-4-1984, EXPRESSLY COMMENCES WITH A NON OBSTA NTE CLAUSE, THE UNDERLYING OBJECT BEING TO DISALLOW DEDUCTIONS CLAI MED MERELY BY MAKING A BOOK ENTRY BASED ON MERCANTILE SYSTEM OF A CCOUNTING. AT THE SAME TIME, SECTION 43B [MAIN SECTION] MADE IT MANDATORY FOR THE DEPARTMENT TO GRANT DEDUCTION IN COMPUTING THE INCO ME UNDER SECTION 28 IN THE YEAR IN WHICH TAX, DUTY, CESS, ETC., IS ACT UALLY PAID. HOWEVER, PARLIAMENT TOOK COGNIZANCE OF THE FA CT THAT ACCOUNTING YEAR OF A COMPANY DID NOT ALWAYS TALLY W ITH THE DUE DATES UNDER THE PROVIDENT FUND ACT , MUNICIPAL CORPORATION ACT [OCTROI] AND OTHER TAX LAWS. THEREFORE, BY WAY OF FIRST PROV ISO, AN INCENTIVE/RELAXATION WAS SOUGHT TO BE GIVEN IN RESP ECT OF TAX, DUTY, CESS OR FEE BY EXPLICITLY STATING THAT IF SUCH TAX, DUTY, CESS OR FEE IS PAID BEFORE THE DATE OF FILING OF THE RETURN UNDER THE INCOME-TAX ACT [DUE DATE], THE ASSESSEE(S) THEN WOULD BE ENTITLED TO DEDUCTION. HOWEVER, THIS RELAXATION/INCENTIVE WAS RESTRICTED O NLY TO TAX, DUTY, CESS AND FEE. IT DID NOT APPLY TO CONTRIBUTIONS TO LABOUR WELFARE FUNDS. THE REASON APPEARS TO BE THAT THE EMPLOYER(S ) SHOULD NOT SIT ON THE COLLECTED CONTRIBUTIONS AND DEPRIVE THE WORK MEN OF THE RIGHTFUL BENEFITS UNDER SOCIAL WELFARE LEGISLATIONS BY DELAYING PAYMENT OF CONTRIBUTIONS TO THE WELFARE FUNDS. HOWE VER, AS STATED ABOVE, THE SECOND PROVISO RESULTED IN IMPLEMENTATIO N PROBLEMS, WHICH HAVE BEEN MENTIONED HEREINABOVE, AND WHICH RE SULTED IN THE ENACTMENT OF FINANCE ACT , 2003, DELETING THE SECOND PROVISO AND BRINGING ABOUT UNIFORMITY IN THE FIRST PROVISO BY E QUATING TAX, DUTY, CESS AND FEE WITH CONTRIBUTIONS TO WELFARE FUNDS. O NCE THIS UNIFORMITY IS BROUGHT ABOUT IN THE FIRST PROVISO, T HEN, IN OUR VIEW, THE FINANCE ACT , 2003, WHICH IS MADE APPLICABLE BY THE PARLIAMENT ONLY WITH EFFECT FROM 1-4-2004, WOULD BECOME CURATI VE IN NATURE, HENCE, IT WOULD APPLY RETROSPECTIVELY WITH EFFECT F ROM 1-4-1988. SECONDLY, IT MAY BE NOTED THAT, IN THE CASE OF ALLI ED MOTORS (P.) LTD. V. CIT [1997] 224 ITR 677(SC), THE SCHEME OF SECTION 43B OF THE ACT CAME TO BE EXAMINED. IN THAT CASE, THE QUESTION WHICH AROSE FOR DETERMINATION WAS, WHETHER SALES TAX COLLECTED BY T HE ASSESSEE AND PAID AFTER THE END OF THE RELEVANT PREVIOUS YEAR BU T WITHIN THE TIME ALLOWED UNDER THE RELEVANT SALES TAX LAW SHOULD BE DISALLOWED UNDER SECTION 43B OF THE ACT WHILE COMPUTING THE BUSINESS INCOME OF THE PREVIOUS YEAR? THAT WAS A CASE WHICH RELATED TO ASSESSMENT YEAR 1984-85. THE RELEVANT ACCOUNTING PERIOD ENDED ON 30-6-1983. THE INCOME-TAX OFFICER DISALLOWED THE DEDUCTION CLA IMED BY THE 31 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ASSESSEE WHICH WAS ON ACCOUNT OF SALES TAX COLLECTE D BY THE ASSESSEE FOR THE LAST QUARTER OF THE RELEVANT ACCOUNTING YEA R. THE DEDUCTION WAS DISALLOWED UNDER SECTION 43B WHICH, AS STATED ABOVE, WAS INSERTED WITH EFFECT FROM 1-4-1984. IT IS ALSO RELE VANT TO NOTE THAT THE FIRST PROVISO WHICH CAME INTO FORCE WITH EFFECT FRO M 1-4-1988 WAS NOT ON THE STATUTE BOOK WHEN THE ASSESSMENTS WERE M ADE IN THE CASE OF ALLIED MOTORS (P.) LTD. (SUPRA). HOWEVER, THE AS SESSEE CONTENDED THAT EVEN THOUGH THE FIRST PROVISO CAME TO BE INSER TED WITH EFFECT FROM 1-4-1988, IT WAS ENTITLED TO THE BENEFIT OF TH AT PROVISO BECAUSE IT OPERATED RETROSPECTIVELY FROM 1-4-1984, WHEN SECTION 43B STOOD INSERTED. THIS IS HOW THE QUESTION OF RETROSPECTIVI TY AROSE IN ALLIED MOTORS (P.) LTD.'S CASE (SUPRA). THIS COURT, IN ALL IED MOTORS (P.) LTD.'S CASE (SUPRA) HELD THAT, WHEN A PROVISO IS IN SERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WOR KABLE, A PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION IN THE S ECTION AND WHICH PROVISO IS REQUIRED TO BE READ INTO THE SECTION TO GIVE THE SECTION A REASONABLE INTERPRETATION, IT COULD BE READ RETROSP ECTIVE IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHO LE. ACCORDINGLY, THIS COURT, IN ALLIED MOTORS (P.) LTD.'S CASE (SUPRA), H ELD THAT THE FIRST PROVISO WAS CURATIVE IN NATURE, HENCE, RETROSPECTIV E IN OPERATION WITH EFFECT FROM 1-4-1988. IT IS IMPORTANT TO NOTE ONCE AGAIN THAT, BY FINANCE ACT , 2003, NOT ONLY THE SECOND PROVISO IS DELETED BUT EVEN THE FIRST PROVISO IS SOUGHT TO BE AMENDED BY B RINGING ABOUT AN UNIFORMITY IN TAX, DUTY, CESS AND FEE ON THE ONE HA ND VIS-A-VIS CONTRIBUTIONS TO WELFARE FUNDS OF EMPLOYEE(S) ON TH E OTHER. THIS IS ONE MORE REASON WHY WE HOLD THAT THE FINANCE ACT , 2003, IS RETROSPECTIVE IN OPERATION. MOREOVER, THE JUDGMENT IN ALLIED MOTORS (P.) LTD.'S CASE (SUPRA) IS DELIVERED BY A BENCH OF THREE LEARNED JUDGES, WHICH IS BINDING ON US. ACCORDINGLY, WE HOL D THAT FINANCE ACT , 2003, WILL OPERATE RETROSPECTIVELY WITH EFFECT FR OM 1-4-1988 [WHEN THE FIRST PROVISO STOOD INSERTED]. LASTLY, WE MAY POINT OUT THE HARDSHIP AND THE INVIDIOUS DISCRIMINATION WHICH WOU LD BE CAUSED TO THE ASSESSEE(S) IF THE CONTENTION OF THE DEPARTMENT IS TO BE ACCEPTED THAT FINANCE ACT , 2003, TO THE ABOVE EXTENT, OPERATED PROSPECTIVELY . TAKE AN EXAMPLE - IN THE PRESENT CASE, THE RESPONDE NTS HAVE DEPOSITED THE CONTRIBUTIONS WITH THE R.P.F.C. AFTER 31ST MARCH [END OF ACCOUNTING YEAR] BUT BEFORE FILING OF THE RETURN S UNDER THE INCOME- TAX ACT AND THE DATE OF PAYMENT FALLS AFTER THE DUE DATE U NDER THE EMPLOYEES' PROVIDENT FUND ACT , THEY WILL BE DENIED DEDUCTION FOR ALL TIMES. IN VIEW OF THE SECOND PROVISO, WHICH STO OD ON THE STATUTE BOOK AT THE RELEVANT TIME, EACH OF SUCH ASSESSEE(S) WOULD NOT BE ENTITLED TO DEDUCTION UNDER SECTION 43B OF THE ACT FOR ALL TIMES. THEY WOULD LOSE THE BENEFIT OF DEDUCTION EVEN IN THE YEA R OF ACCOUNT IN WHICH THEY PAY THE CONTRIBUTIONS TO THE WELFARE FUN DS, WHEREAS A DEFAULTER, WHO FAILS TO PAY THE CONTRIBUTION TO THE WELFARE FUND RIGHT UP TO 1-4-2004, AND WHO PAYS THE CONTRIBUTION AFTER 1-4-2004, WOULD GET THE BENEFIT OF DEDUCTION UNDER SECTION 43B OF THE ACT. IN OUR VIEW, THEREFORE, FINANCE ACT , 2003, TO THE EXTENT INDICATED ABOVE, SHOULD BE READ AS RETROSPECTIVE. IT WOULD, THEREFOR E, OPERATE FROM 1- 32 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) 4-1988, WHEN THE FIRST PROVISO WAS INTRODUCED. IT I S TRUE THAT THE PARLIAMENT HAS EXPLICITLY STATED THAT FINANCE ACT , 2003, WILL OPERATE WITH EFFECT FROM 1-4-2004. HOWEVER, THE MATTER BEFO RE US INVOLVES THE PRINCIPLE OF CONSTRUCTION TO BE PLACED ON THE P ROVISIONS OF FINANCE ACT , 2003. 10. BEFORE CONCLUDING, WE EXTRACT HEREINBELOW THE R ELEVANT OBSERVATIONS OF THIS COURT IN THE CASE OF CIT V. J.H. GOTLA [1985] 156 ITR 323, WHICH READS AS UNDER: '...WE SHOULD FIND OUT THE INTENTION FROM THE LANGU AGE USED BY THE LEGISLATURE AND IF STRICT LITERAL CONSTRUCTION LEAD S TO AN ABSURD RESULT, I.E., A RESULT NOT INTENDED TO BE SUBSERVED BY THE OBJECT OF THE LEGISLATION FOUND IN THE MANNER INDICATED BEFORE, T HEN IF ANOTHER CONSTRUCTION IS POSSIBLE APART FROM STRICT LITERAL CONSTRUCTION, THEN THAT CONSTRUCTION SHOULD BE PREFERRED TO THE STRICT LITERAL CONSTRUCTION. THOUGH EQUITY AND TAXATION ARE OFTEN STRANGERS, ATT EMPTS SHOULD BE MADE THAT THESE DO NOT REMAIN ALWAYS SO AND IF A CO NSTRUCTION RESULTS IN EQUITY RATHER THAN IN INJUSTICE, THEN SUCH CONST RUCTION SHOULD BE PREFERRED TO THE LITERAL CONSTRUCTION....' (P. 339) FOR THE AFORE-STATED REASONS, WE HOLD THAT FINANCE ACT , 2003, TO THE EXTENT INDICATED ABOVE, IS CURATIVE IN NATURE, HENCE, IT IS RETROSPE CTIVE AND IT WOULD OPERATE WITH EFFECT FROM 1-4-1988 [WHEN THE FIRST P ROVISO CAME TO BE INSERTED]. FOR THE ABOVE REASONS, WE FIND NO MERIT IN THIS BATCH OF CIVIL APPEALS FILED BY THE DEPARTMENT WHICH ARE HER EBY DISMISSED WITH NO ORDER AS TO COSTS.' 11. SIMILARLY, THE HON`BLE SUPREME COURT IN THE CAS E OF ALLIED MOTERS (P) LTD, 91 TAXMAN 205 (SC) HELD AS FOLLOWS: 'A PROVISO WHICH IS INSERTED TO REMEDY UNINTENDED C ONSEQUENCES AND TO MAKE THE PROVISION WORKABLE, A PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION IN THE SECTION AND IS REQUIRED TO BE READ INTO THE SECTION TO GIVE THE SECTION A REASONABLE INTERPRETA TION, REQUIRES TO BE TREATED AS RETROSPECTIVE IN OPERATION SO THAT A REA SONABLE INTERPRETATION CAN BE GIVEN TO THE SECTION AS A WHO LE. ACCORDINGLY, THE SALES-TAX COLLECTED BY THE ASSESSE E COLLECTED IN THE LAST QUARTER OF THE RELEVANT PREVIOUS YEAR AND PAID AFTER THE END OF THE PREVIOUS YEAR BUT WITHIN THE TIME ALLOWED UNDER THE RELEVANT SALES- TAX LAW COULD NOT BE DISALLOWED UNDER SECTION 43B , WHILE COMPUTING THE BUSINESS INCOME OF THE SAID PREVIOUS YEAR.' 12. WE NOTE THAT THE COORDINATE BENCH OF ITAT MUMBA I, IN THE CASE OF M/S JOHN FLOWER ( INDIA) PVT. LTD, IN ITA NO.754 5/MUM/2014, FOR A.Y. 2010-11, ORDER DATED 25.01.2017 HELD THAT IF THE DIFFERENCE BETWEEN THE VALUATION ADOPTED BY THE STAMP VALUATIO N AUTHORITY AND DECLARED BY THE ASSESSEE IS LESS THAN 10%, THE SAME SHOULD BE IGNORED AND NO ADJUSTMENTS SHALL BE MADE. 33 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) ACCORDINGLY, WE HOLD THAT THE INSERTION OF THIRD PR OVISO (NOTED ABOVE) TO SECTION 50C OF THE ACT IS DECLARATORY AND CURATIVE IN NATURE. THAT IS, THE THIRD PROVISOTO SECTION 50C OF THE ACT RELATES TO COMPUTATION OF VALUE OF PROPERTY AS EXPLAINED BY US ABOVE, HENCE IT IS NOT A SUBSTANTIVE AMENDMENT, IT IS ONLY A PROCED URAL AMENDMENT THEREFORE THE COORDINATE BENCHES OF THE ITAT USED T O IGNORE THE VARIATION UP TO 10%, THEREFORE, THE SAID AMENDMENT SHOULD BE RETROSPECTIVE.QUITE CLEARLY THEREFORE, EVEN WHEN TH E STATUTE DOES NOT SPECIFICALLY STATE SO, SUCH AMENDMENTS, IN THE LIGH T OF THE DETAILED DISCUSSIONS ABOVE, CAN ONLY BE TREATED AS RETROSPEC TIVE AND EFFECTIVE FROM THE DATE RELATED STATUTORY PROVISIONS WAS INTR ODUCED. VIEWED THUS, THE THIRD PROVISO TO SECTION50C SHOULD BE TRE ATED AS CURATIVE IN NATURE AND WITH RETROSPECTIVE EFFECT FROM 1ST APRIL 2003, I.E. THE DATE EFFECTIVE FROM WHICH SECTION 50C WAS INTRODUCED. WE NOTE THAT FINANCE ACT , 2018, W.E.F. 01.04.2019 PROVIDED THAT NO ADJUSTMENTS SHALL BE MADE IN A CASE WHERE THE VARIA TION BETWEEN STAMP DUTY VALUE AND THE SALE CONSIDERATION IS NOT MORE THAN 5% OF THE SALE CONSIDERATION. IN THE ASSESSEE'S CASE UNDE R CONSIDERATION, THE STAMP DUTY VALUATION IS RS. 3,27,01,950/- AND SALE CONSIDERATION IS RS. 3,15,00,000/-. THE DIFFERENCE OF RS. 12,01,950/ - IS NOT MORE THAN 5% OF THE SALE CONSIDERATION. THAT IS, IT IS AT 3.8 1% [12,01,950 / 3,15,00,000 X 100] OF SALE CONSIDERATION, THEREFORE , WE DELETE THE ADDITION OF RS. 12,01,950/-. (J) WE HAVE RESPECTFULLY CONSIDERED THE AFORESAID ORDER IN THE CASE OF CHANDRA PRAKASH JHUNJHUNWALA VS. DCIT (SUPRA). HOWEVER, WE FIND THAT IT HAS NO APPLICATIO N TO THE FACTS OF THE CASE BEFORE US. IN THE CASE OF CHANDRA PRAKASH JHUNJHUNWALA VS. DCIT (SUPRA) THE VALUE AS PER STAM P VALUATION AUTHORITY WAS LESS THAN 105 PERCENT OF TH E SALE CONSIDERATION AS PER SALE DEED. HOWEVER, IN THE CAS E BEFORE US THE VALUE AS PER STAMP VALUATION AUTHORITY (RS. 1,04,00,000/-) IS MORE THAN 105 PERCENT OF THE SALE CONSIDERATION AS PER SALE DEED (RS. 70,00,00,000). FOR THE PURPOSES OF THIRD PROVISO TO S. 50C(1) OF I.T.ACT; THE VALUATION OF THE PROPERTY BY DVO HAS NO RELEVANCE; AND 34 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) WHAT IS MATERIAL IS THE VALUATION BY STAMP VALUATIO N AUTHORITY. WHEN THE VALUE AS PER STAMP VALUATION AUTHORITY IS MORE THAN 105 PERCENT OF SALE CONSIDERATION AS PER SALE DEED; THE ASSESSEE IS NOT ELIGIBLE FOR BENEFIT UNDER THIRD PROVISO TO S. 50C( 1) OF I.T.ACT, EVEN WHEN VALUATION BY DVO IS LESS THAN 10 5 PERCENT OF SALE CONSIDERATION AS PER SALE DEED. IN VIEW OF THE FOREGOING, AND IN THE FACTS AND CIRCUMSTANCES O F THE CASE BEFORE US; WE FIND THAT THE ORDER OF LD. CIT(A ) IS IN ACCORDANCE WITH LAW AND WE DECLINE TO INTERFERE WIT H IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE. ACC ORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. FOR STATISTICAL PURPOSES, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/02/2020. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19/02/2020 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT, NEW DELHI 35 ITA NO. 4596/DEL/2016 (MANOJ MITTAL) DATE OF DICTATION 06/02/2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER /02 /2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER