INDEXONE TRADECONE PVT. LTD., JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR

ITA 470/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6395 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 09-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Assessee Lawyers: G M MEHTA
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 43CA; 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 470/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15 INDEXONE TRADECONE PVT. LTD. JAIPUR CUKE VS. D CIT , CENTRAL CIRCLE-2, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AABCI2248E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G. M. MEHTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/07/2018 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT: 16/07/2018. VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)- 01, JAIPUR DATED 01.02.2018 PERTAINING TO ASSESSMEN T YEAR 2014-15 WHEREIN THE ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT(A) IN SUSTAINING THE ADDITION OF RS. 20,38,324/- WHILE INVOKING THE PROVISIONS OF SECTION 43CA OF THE ACT. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE COMPANY IS ENGAGED IN BUSINESS OF DEVELOPING AND CONSTRUCTING RESIDENTIAL/COMMERCIAL PROPERTY IN JAIPUR. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SO LD VARIOUS PROPERTIES DURING THE YEAR UNDER CONSIDERATION AND GOT THEM RE GISTERED. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE COMPANY HAS SHOWN SALE VALUE LESS THAN THE VALUE ASCERTAINED BY SUB-REGISTRAR AND AS SUCH THE SALE WAS SHOWN ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 2 LESS THAN 50C VALUE. IN ITS SUBMISSION BEFORE THE A O, THE ASSESSEE SUBMITTED THAT THE AGREEMENT TO SALE HAS BEEN MADE BY IT IN E ARLIER YEARS AND AS SUCH THE SALE PRICE HAS BEEN SHOWN ACCORDINGLY. IT WAS F URTHER STATED THAT ALL THE BOOKINGS HAVE BEEN MADE IN EARLIER YEARS THROUGH SA LE AGREEMENTS, WHEREIN BOOKING AMOUNT CHEQUES WERE RECEIVED AT THE TIME OF BOOKING AND AS SUCH THE PROVISION OF SECTION 43CA ARE NOT APPLICABLE ON IT. THE ASSESSING OFFICER, ON PERUSAL OF THE REGISTERED DOCUMENTS FILED IN RES PECT TO THE SALE AFFECTED DURING THE YEAR, OBSERVED THAT CASH PAYMENTS WERE A LSO RECEIVED APART FROM PAYMENTS RECEIVED THROUGH CHEQUES. ACCORDINGLY, A S HOW CAUSE NOTICE DATED 18.10.2016 WAS ISSUED TO THE ASSESSEE COMPANY AS TO WHY APPROPRIATE ADDITION SHOULD NOT BE MADE IN TERMS OF PROVISIONS OF SECTION 43CA OF THE ACT GIVEN THAT ADVANCES WERE RECEIVED IN CASH AT THE TI ME OF BOOKING IN TERMS OF COPIES OF THE AGREEMENT DATED 09.07.2007. AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE, THE AO FINALLY HELD THAT THE ASSES SEE HAS ENTERED INTO AGREEMENT TO SELL IN EARLIER YEARS AND AT THE TIME OF AGREEMENT, THE ASSESSEE COMPANY HAD RECEIVED PAYMENT THROUGH CHEQUES AS WEL L AS IN CASH AS BOOKING AMOUNT. AS FAR AS CHEQUE PAYMENTS ARE CONCE RNED, THE SAME WAS FOUND ACCEPTABLE. HOWEVER, IN RESPECT TO SALE TRANS ACTION IN RESPECT OF FLAT NO. 3 AND T-2 SITUATED AT SAPPHIRE HERITAGE, THE AO OBSERVED THAT THE ASSESSEE COMPANY RECEIVED THE BOOKING AMOUNT IN CAS H AND AS SUCH IT IS A CASE OF CONTRAVENTION OF THE SPIRIT OF LEGISLATURE AS DISCUSSED/DEFINED IN SUB- SECTION (4) OF SUCH 43CA OF IT ACT, 1961. ACCORDING LY, THE DIFFERENTIAL AMOUNT OF THE SALE CONSIDERATION AS PER THE SALE CONSIDERA TION DECLARED BY THE ASSESSEE IN THE RESPECTIVE SALE DEEDS AND THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITY FOR THE PURPOSE OF CHARGING THE STAM P DUTY WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE COMPANY U/S 43CA OF TH E ACT. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT PROVISIONS OF SECTION 43CA HAVE BEEN WRONGLY APPLIED BY THE ASSESSING OFF ICER AS THE SALE ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 3 CONSIDERATION IN RESPECT OF TWO FLATS (FLAT NO. 3 A ND T-2 SITUATED AT SAPPHIRE HERITAGE) WERE ALREADY TAKEN INTO CONSIDERATION IN EARLIER YEARS IN ITS BOOKS OF ACCOUNTS AND OFFERED TO TAX WHEN THE ENTIRE CONSIDE RATION WAS RECEIVED AND THE POSSESSION OF THE FLATS WERE HANDED OVER TO THE BUYERS ON 28.06.2008 AND 30.06.2010 RESPECTIVELY. IT WAS SUBMITTED THAT IN T ERMS OF PROVISIONS OF SECTION 2(47)(V) OF THE ACT, THE TRANSFER WAS COMPL ETE ON THESE DATES AND THEREFORE, THE AO WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 43CA OF THE ACT. 4. THE LD. CIT(A) REFERRED TO THE PROVISIONS OF SEC TION 43CA INSERTED BY FINANCE ACT, 2013 W.E.F 01.04.2014 AND THE CBDT CIR CULAR NO. 3/2014[F. NO. 142/24/2013-TPL] DATED 24.01.2014 AND HELD THAT THE SAID PROVISIONS ARE APPLICABLE FROM A.Y 2014-15 IN CASES WHERE VALUATIO N OF THE PROPERTY ADOPTED BY THE STAMP DUTY AUTHORITIES IS MORE THAN THE SALE CONSIDERATION DECLARED IN THE SALE DEED. IT WAS HELD BY THE LD. CIT(A) THAT I T IS UNDISPUTED FACT THAT THE SALE DEEDS IN RESPECT OF FLAT NO. T-3 AND T-2 WERE REGISTERED DURING YEAR UNDER CONSIDERATION AND THEREFORE, THE PROVISIONS O F SECTION 43CA ARE CLEARLY APPLICABLE. IT WAS FURTHER HELD BY THE LD. CIT(A) T HAT IT IS NOWHERE STATED IN SECTION 43CA THAT THIS PROVISIONS WOULD NOT BE APPL ICABLE TO THE SALE TRANSACTIONS AS COVERED UNDER THE PROVISIONS OF SEC TION 2(47)(V) OF THE ACT. 5. REGARDING ANOTHER CONTENTION OF THE ASSESSEE THA T THE PETTY AMOUNT WERE RECEIVED IN CASH AT THE TIME OF EXECUTING THE AGREEMENT TO SELL FOR THESE TWO FLATS AND THE REMAINING CONSIDERATION WAS RECEI VED THROUGH BANKING CHANNELS AND THEREFORE, ITS CASE IS COVERED UNDER T HE EXCEPTIONS AS STATED IN SECTION 43CA(4) OF THE ACT, IT WAS HELD BY THE LD C IT(A) THAT THERE IS NO EQUITY IN TAX LAWS AND AS PER THE PROVISIONS OF SECTION 43 CA(4) OF THE ACT, THE EXCEPTIONS TO SECTION 43CA(3) COULD BE ALLOWED ONLY IN THOSE CASES, WHEREIN A PART OF THE SALE CONSIDERATION WAS RECEIVED BY MODE S OTHER THAN CASH ON OR BEFORE THE DATE OF THE AGREEMENT TO SELL AND IN T HE INSTANT CASE, THE CASH ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 4 AMOUNT WAS PAID BY THE BUYERS ON THE DATE OF AGREEM ENT TO SELL AND THEREFORE, THE CASE OF THE ASSESSEE COULD NOT BE EX CLUDED FROM THE APPLICABILITY OF PROVISIONS OF SECTION 43CA(1) OF T HE ACT. ACCORDINGLY, THE LD. CIT(A) UPHELD THE ADDITION OF RS. 20,38,324/- MADE BY THE ASSESSING OFFICER U/S 43CA OF THE ACT. NOW, THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE SAID FINDINGS OF THE LD CIT(A). 6. THE LD AR SUBMITTED THAT THE ASSESSEE COMPANY IS A DEVELOPER & BUILDER OF RESIDENTIAL AND COMMERCIAL PROPERTIES. A FTER SALE OF CONSTRUCTED PROPERTY, IN MAJORITY OF CASES, THE BUY ERS GET THE PROPERTIES REGISTERED IN THE OFFICE OF SUB-REGISTRA R IN THEIR NAMES; HOWEVER IN FEW CASES AFTER COMPLETION OF SALES, THE SAME ARE REGISTERED AFTERWARDS, IN OFFICE OF SUB-REGISTRAR A S PER THE CONVENIENCE OF BUYERS. SINCE THE SALES IN SUCH CASES ARE COMPLE TE, THESE ARE DISCLOSED IN REGULAR BOOKS OF ACCOUNTS AS SALES. IN ASSESSEE'S CASE, TWO RESIDENTIAL FLATS (FLAT NO. T-2 AND FLAT NO T-3) WE RE SOLD AND DISCLOSED IN BOOKS OF ACCOUNTS AS 'SALE OF UNITS' IN PERIOD R ELEVANT TO A.Y. 2009- 10. HOWEVER, BOTH THE SOLD PROPERTIES WERE GOT REGI STERED IN THE OFFICE OF SUB-REGISTRAR ON 09.12.2013 AND 03.10.2013 RESPE CTIVELY BY THE BUYERS. INVOKING PROVISIONS OF SECTION 43CA OF IT A CT, BOTH THE LOWER AUTHORITIES MADE/SUSTAINED ADDITION OF RS.20,38,324 /- IN A.Y. 2014-15, WHICH WAS THE DIFFERENCE IN ACTUAL SALE PRICE DISCL OSED AND ACCEPTED BY THE DEPTT. IN A.Y. 2009-10 AND DLC RATES IN F.Y. 20 13-14. IT WAS FURTHER SUBMITTED THAT THE PURCHASE CONSIDER ATION OF THE TWO RESIDENTIAL FLATS (STOCK IN TRADE) WAS RECEIVED AS PER FOLLOWING DETAILS: S.NO. DETAILS OF SOLD PROPERTIES SALE AGREEMENT & POSSESSION DATE SALE CONSIDERATION PAYMENT DETAILS - I.E. AMOUNT, MODES AND DATES ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 5 1. FLAT NO. T - 2 SAPPHIRE HERITAGE 9TH APRIL 2007 (POSSESSION HANDED OVER ON 30.06.2010) RS.26,36,000/ 09.04.2007 04.05.2007 30.06.2010 11 ,000 (CASH) 24,00,000(CHEQ) 2,25,000(CHEQ) 1. FLAT NO. T - 3 SAPPHIRE HERITAGE 9TH APRIL 2007 (POSSESSION HANDED OVER ON 28.06.2008) RS.27,00,000/ 09.04.2007 04.05.2007 28.06.2008 1,50,000 (CASH) 24,50,000(CHEQ) 1,00,000(CHEQ) IT WAS FURTHER SUBMITTED THAT THE ASSESSEE COMPANY HAD ACCOUNTED FOR THE SALES OF BOTH THE CONSTRUCTED RESIDENTIAL UNITS IN FINANCIAL YEAR 2008-09 (A.Y. 2009-10) FOR WHICH COPY OF RETURN OF INCOME AND RELEVANT STATEMENTS OF ACCOUNTS AND DETAILS OF SALE OF STOCK IN TRADE IS ENCLOSED AS PER FOLLOWING DETAILS AND PROOFS: S.NO. DETAILS OF SOLD PROPERTIES SALES DECLARED AND ACCEPTED BY DEPTT. 1. FLAT NO. T - 2 SAPPHIRE HERITAGE A.Y. 2009-10 2. FLAT NO. T - 3 SAPPHIRE HERITAGE A.Y.2009 - 10 IT WAS FURTHER SUBMITTED THAT BOTH THE BUYERS, AFTE R PURCHASING RESIDENTIAL FLATS NO. T-2 AND T3, IN F.Y. 2008-09, OBTAINED ELECTRICITY CONNECTION IN THEIR RESPECTIVE NAMES IN THAT YEAR A ND STARTED RESIDING THEREIN OR AND ANOTHER FLAT WAS LET OUT. IT WAS FURTHER SUBMITTED THAT SECTION 43CA OF IT AC T WAS INSERTED BY FINANCE ACT 2013 W.E.F. 1ST APRIL 2014, APPLICABLE FROM A.Y. 2014-15 WHICH LEVIES TAX ON DIFFERENCE IN SALE VALUE OF LAN D OR BUILDING OR BOTH (STOCK IN TRADE) AND THE VALUE ASSESSED OR ASSESSAB LE BY THE AUTHORITY OF THE STATE GOVERNMENT FOR PURPOSE OF PAYMENT OF STAM P DUTY. HOWEVER, IF THE SALES ARE COMPLETE ON RECEIPT OF CONSIDERATION OR MAJOR PART THEREOF AND AFTER HANDING OVER THE POSSESSION, THE DEEMING FICTION PRESCRIBED UNDER SAID SECTION CANNOT BE MADE APPLICABLE. IN TH IS CASE, EVEN AFTER ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 6 ACCEPTING THE SALES OF BOTH THE RESIDENTIAL FLATS I N THE A.Y. 2009-10, THE ADDITION OF RS. 20,38,324/- WAS SUSTAINED BY LD. CI T(A) FOR INABILITY OF THE ASSESSEE TO FORESEE THE FUTURE INSERTION OF PROVISI ONS OF SECTION 43CA OF IT ACT IN WHICH CASH RECEIPT AT THE TIME OF BOOKING OR AGREEMENT WAS MADE BASIS OF THE ADDITIONS THOUGH IT WAS NOT THE INTENTION OF THE LEGISLATURE. IT WAS FURTHER SUBMITTED THAT SALE OF BOTH THE FLAT S (STOCK IN TRADE) FOR WHICH ADDITION WAS MADE/SUSTAINED WERE COMPLETE AS PER PROVISIONS OF SECTION 2(47)(V) OF IT ACT ON HANDING OVER THE POSS ESSION TO BUYERS, ACCOUNTED FOR AND DISCLOSED AS SALES IN RETURNS OF INCOME AND ACCEPTED BY THE DEPARTMENT IN EARLIER YEARS THEREFORE, ON TH E REGISTRATION OF THE SAME PROPERTIES WITH THE SUB-REGISTRAR, THE SAME CA NNOT BE SUBJECT TO TAX AGAIN WHEN IT WAS NOT SALES IN THE BOOKS OF ACC OUNTS. IT WAS SUBMITTED THAT THE SALES OF BOTH THE FLATS ( FLAT NO. T-2 & FLAT NO. T-3) WAS COMPLETE IN F.Y. 2008-09 (A.Y. 2009-10 ) WHEN THESE WERE SOLD TO THE BUYERS. THESE PROPERTIES WERE REGISTERED IN THE OFFICE OF SUB-REGISTRAR AS UNDER: S.NO. DETAILS OF SOLD PROPERTIES REGISTERED ON 1. FLAT NO. T-2 SAPPHIRE HERITAGE 09.12.2013 2. FLAT NO. T-3 SAPPHIRE HERITAGE 03.10.2013 IT WAS SUBMITTED THAT THE DATE OF HANDING OVER OF P OSSESSION TO BOTH THE BUYERS IS APPEARING IN THE REGISTERED DEED OF SALES AND THEREFORE SALE IS COMPLETE ON THAT DAY. ON THE FACTS, BOTH THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN MAKING/SUSTAINING THE ADDITIONS IN A.Y . 2014-15 BY INVOKING PROVISIONS OF SECTION 43CA OF IT ACT MORE SO WHEN T HE SALE OF THESE FLATS WERE ALREADY ACCEPTED BY LD. AO AS PER RETURN OF IN COME FOR THE A.Y. 2009-10 AND BOTH THE BUYERS RECOGNIZED AND ACCEPTED AS OWNERS BY SEMI- ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 7 GOVERNMENT DEPARTMENT (ELECTRICITY BOARD) TO WHOM E LECTRICITY CONNECTIONS IN THEIR RESPECTIVE NAMES WAS PROVIDED IN THE FY 2008-09. 7. THE LD. DR VEHEMENTLY ARGUED THE MATTER AND TOOK US THROUGH THE FINDINGS OF THE LOWER AUTHORITIES WHICH WE HAVE ALR EADY CONSIDERED ABOVE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE UNDIS PUTED FACTS ARE THAT THE ASSESSEE HAS ENTERED INTO THE AGREEMENT TO SELL DAT ED 9 TH APRIL, 2007 IN RESPECT OF FLAT NO. T-2 SAPPHIRE HERITAGE FOR A TOT AL SALE CONSIDERATION OF RS. 26,36,000/- WHICH HAS BEEN RECEIVED IN FORM OF CASH AMOUNTING TO RS. 11,000/- ON 09.04.2007 AND THE REMAINING AMOUNT IN CHEQUE OF RS. 24,00,000/- ON 04.05.2007 AND 2.25 LACS ON 30.06.20 10 RESPECTIVELY. THEREAFTER, THE POSSESSION OF THE PROPERTY WAS HAND ED OVER TO THE BUYER ON 30.06.2010 AND THE FINAL SALE DEED WAS REGISTERED O N 09.12.2013 DISCLOSING THE CASH AND THE CHEQUE PAYMENTS RECEIVED EARLIER A ND THE FACT OF POSSESSION BEING HANDED OVER TO THE BUYER ON 30.06.2010. FURTH ER, IT IS ALSO BEING CONTENDED BY THE LD. AR THAT THE SALE CONSIDERATION OF RS. 26,36,000/- HAVE BEEN DULY DECLARED IN THE ASSESSEES RETURN OF INCO ME AND ACCEPTED BY THE DEPARTMENT FOR AY 2009-10. 9. SIMILAR FACT PATTERN EXISTS IN RESPECT OF THE OT HER PROPERTY NAMELY FLAT NO. T-3 WHEREIN THE AGREEMENT TO SELL WAS ENTERED I NTO ON 9 TH APRIL, 2007 FOR AN AMOUNT OF RS. 27,00,000/- OUT OF WHICH RS. 1.5 L AC WAS RECEIVED IN CASH ON 09.04.2007 AND THEREAFTER, TWO CHEQUE PAYMENTS OF R S. 24.5 LAC AND 1 LAC WERE RECEIVED BY THE ASSESSEE ON 04.05.2007 AND 28. 06.2008. THE POSSESSION OVER THE SAID PROPERTY WAS HANDED OVER TO THE BUYER ON 28.06.2008 AND FINALLY THE SALE DEED WAS EXECUTED ON 03.10.2013 CO NFIRMING THE PAYMENTS AND THE POSSESSION BEING HANDED OVER TO THE BUYER O N 28.06.2008. FURTHER, IT IS ALSO BEING CONTENDED BY THE LD. AR THAT THE SALE CONSIDERATION OF RS. ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 8 27,00,000/- HAVE BEEN DULY DECLARED IN THE ASSESSEE S RETURN OF INCOME AND ACCEPTED BY THE DEPARTMENT FOR AY 2009-10. 10. IN LIGHT OF ABOVE FACTUAL MATRIX WHEREIN THE WH OLE OF THE SALE CONSIDERATION HAS BEEN RECEIVED AS PER AGREEMENT TO SELL IN THE PREVIOUS YEARS AND EVEN THE POSSESSION OVER THE PROPERTY BEI NG HANDED OVER TO THE BUYER AND THE BUYER HAS EITHER STARTED RESIDING THE REIN OR GIVEN HIS FLAT ON HIRE AND THE SALE TRANSACTION DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND REPORTED TO TAX IN THE RETURN OF I NCOME, THE QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER THE PROVISION O F SECTION 43CA CAN BE INVOKED IN RESPECT OF SUCH TRANSACTIONS AND THE DIF FERENTIAL AMOUNT CAN BE BROUGHT TO TAX FOR THE REASON THAT THE SALE DEED HA S BEEN EXECUTED DURING THE YEAR UNDER CONSIDERATION WHEREIN THE VALUE ADOPTED BY THE SUB-REGISTRAR FOR PURPOSES OF PAYMENT OF STAMP DUTY IS HIGHER THAN WH AT HAS BEEN AGREED TO BETWEEN THE ASSESSEE AND THE BUYER AND THE EXCEPTIO NS PROVIDED UNDER SUB- SECTION (4) ARE NOT AVAILABLE TO THE ASSESSEE. 11. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, I T WOULD BE APPROPRIATE TO REFER TO THE PROVISIONS OF SECTION 43CA OF THE ACT WHICH READS AS UNDER:- 43CA (1) WHERE THE CONSIDERATION RECEIVED OR ACCR UING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF AN ASSET (OTHER THAN A CAPITAL ASSET), BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE AD OPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT F OR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, FOR THE PURPOSES OF C OMPUTING PROFITS AND GAINS FROM TRANSFER OF SUCH ASSET, BE DEEMED TO BE THE FU LL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF S UCH TRANSFER. ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 9 (2) THE PROVISIONS OF SUB-SECTION (2) AND SUB-SECTI ON (3) OF SECTION 50C SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO DETERMINATIO N OF THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE UNDER SUB-SECTION (1). (3) WHERE THE DATE OF AGREEMENT FIXING THE VALUE OF CONSIDERATION FOR TRANSFER OF THE ASSET AND THE DATE OF REGISTRATION OF SUCH T RANSFER OF ASSET ARE NOT THE SAME, THE VALUE REFERRED TO IN SUB-SECTION (1) MAY BE TAKEN AS THE VALUE ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT F OR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER O N THE DATE OF THE AGREEMENT. (4) THE PROVISIONS OF SUB-SECTION (3) 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 THE DATE OF AGREEMENT FOR TRANSFER OF THE ASSET.' 12. THE PROVISIONS OF SECTION 43CA HAVE BEEN INSERT ED BY THE FINANCE ACT, 2013 W.E.F 01.04.2014 RELEVANT TO ASSESSMENT YEAR 2 014-15 AND IF WE LOOK AT THE PROVISIONS OF SUB-SECTION (3) AND SUB-SECTION ( 4), IT EMPHASIZES A SCENARIO WHERE THE DATE OF AGREEMENT FIXING VALUE OF CONSIDE RATION FOR TRANSFER OF THE ASSETS AND DATE OF REGISTRATION ARE NOT THE SAME AN D PROVIDES THAT THE VALUE AS ON THE DATE OF AGREEMENT WOULD BE CONSIDERED PRO VIDED THE AMOUNT OF CONSIDERATION OR PART THEREOF HAS BEEN RECEIVED BY ANY MODE OTHER THAN CASH ON OR BEFORE THE DATE OF AGREEMENT FOR TRANSFER OF THE ASSETS. 13. IN THE PRESENT CASE, WHERE THE DATE OF AGREEMEN T TO SELL IN RESPECT OF THE TWO FLATS IS 9.4.2007, WHICH IS MUCH PRIOR TO T HE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2014-15 WHEN THE PROVISIONS OF SECT ION 43CA HAVE BECOME EFFECTIVE, THERE IS NO WAY THE ASSESSEE WOULD HAVE FORESEEN THESE PROVISIONS AT THE TIME OF ENTERING INTO THE AGREEMENT TO SELL THAT IT HAS TO RECEIVE THE CONSIDERATION ONLY BY ANY MODE OTHER THAN CASH. AT THE RELEVANT POINT IN TIME WHEN IT HAD ENTERED INTO AGREEMENT TO SELL, THERE W AS NO SUCH REQUIREMENT OF RECEIVING THE WHOLE OF THE CONSIDERATION IN MODE OT HER THAN CASH. THEREFORE, ITA NO. 470/JP/2018 INDEXONE TRADECONE PVT. LTD., JAIPUR VS DCIT, JAIPUR 10 IN ORDER TO MAKE THE PROVISIONS OF SUB-SECTION (4) WORKABLE, IN OUR VIEW, THE PROVISIONS OF SUB-SECTION (4) WOULD BE APPLICABLE I N RESPECT OF AGREEMENT TO SELL FOR TRANSFER OF AN ASSET WHICH HAS BEEN EXECUT ED ON OR AFTER 1 ST APRIL, 2013 AND THUS, NOT APPLICABLE IN THE INSTANT CASE. THE MATTER IS ACCORDINGLY REMANDED BACK TO THE FILE OF THE LD CIT(A) TO DETER MINE THE VALUATION OF THE TWO PROPERTIES IN TERMS OF SUB-SECTION (3) AS ON TH E DATE OF AGREEMENT TO SELL WHICH IS 9.4.2007 AND WHERE IT IS SO DETERMINED THA T SUCH VALUATION IS HIGHER THAN WHAT HAS BEEN DECLARED BY THE ASSESSEE, THE SA ME CAN BE BROUGHT TO TAX IN THE YEAR UNDER CONSIDERATION. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16/07/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 16/07/2018 *GANESH KR. VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - INDEXONE TRADECONE PVT. LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT - DCIT, CENTRAL CIRCLE-2, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 470/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.