Appeal details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 9504 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 11 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-07-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
G
Assessment Year
2016-2017
Appeal Filed On
25-07-2019
Judgement Text
THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) I.T.A. NO. 4916/MUM/2019 (ASSESSMENT YEAR 2016-17) SHAISTA IRPHAN MOGUL FLAT NO. 1001, 10 TH FLOOR 578, 5 TH FLOOR, OLD KHAR ROAD, KHAR WEST MUMBAI-400 052. PAN : AIFPM4088B VS. ACIT,CC-5(3) AIR INDIA BUILDING NARIMAN POINT MUMBAI-21. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI GIRISH JAIN DEPARTMENT BY SHRI VIJAYKUMAR MENON DATE OF HEARING 05 .0 5 .2021 DATE OF PRONOUNCEMENT 01.07.2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 21.5.2019 AND PERTAINS TO ASSESSMENT Y EAR 2016-17. 2. GROUNDS OF APPEAL READ AS UNDER :- 1. THE ORDER DATED 30.11.2018 PASSED BY THE ASSESSIN G OFFICER IS EXCESSIVE, UNLAWFUL, AGAINST THE PROVISIONS OF INCOME TAX ACT, 1961. 2. ASSESSEE HAD PURCHASED A RESIDENTIAL FLAT FOR A C ONSIDERATION OF RS 9,00,00,000/-WHERE AS THE STAMP DUTY VALUE OF THE PROP ERTY WAS RS 9,04,55,000/-. THE PAYMENT WAS DIRECTLY MADE BY THE S UMER GROUP TO THE BUILDER ON BEHALF OF ASSESSEE. ASSESSEE BEING A LAY MAN AGREED WITH THE CONSIDERATION AMOUNT WITHOUT KNOWING THE IMPLICATIONS OF PROVISIONS OF SEC 50C OF THE INCOME TAX ACT, 1961. 3. ASSESSING OFFICER FAILED TO CONSIDER THE FACT THA T THE DIFFERENCE MARGIN BETWEEN THE AGREEMENT VALUE AND STAMP DUTY VALUE IS LE SS THAN 5% AND THAT THE PURPOSE OF INSERTION OF AMENDMENT IS TO AVOID THE UNDUE HARDSHIPS FACED BY THE ASSESSEE. 4. IN THE RECENT AMENDMENT MADE BY HONORABLE FINAN CE MINISTER PRESENTED ON 1 ST FEBRUARY, 2018 WHERE IN IT WAS STATED THAT 'TO MINIMISE HARDSHIP IN CASE OF SUCH TRANSACTIONS, IT IS NOW PROVIDED THAT WHE RE THE STAMP DUTY SHAISTA IRPHAN MOGUL 2 VALUE DOES NOT EXCEED THE CONSIDERATION RECEIVED OR A CCRUING BY MORE THAN 5% OF SUCH CONSIDERATION, THE CONSIDERATION RECEIVED O R ACCRUING SHALL BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION.' 5. IN THE GIVEN CASE THE DIFFERENCE BETWEEN THE AGR EEMENT VALUE AND STAMP DUTY VALUE IS HARDLY 0.5%. 6. WE REQUEST YOUR HONOR TO CONSIDER THE SEC 50C RET ROSPECTIVELY. 3. BRIEF FACTS ARE THAT IN THE ASSESSMENT PROCEEDIN GS IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD SOLD AN IMM OVABLE PROPERTY DURING THE YEAR AND HAD PURCHASED ANOTHER IMMOVABLE PROPERTY A ND HAD CLAIMED EXEMPTION U/S 54 OF THE ACT. IT WAS NOTED THAT THE ASSESSEE WAS RESIDING IN FLAT NO. 16B AT S V ROAD, SANTACRUZ (W), MUMBAI, WHERE T ENANCY RIGHTS WERE IN DISPUTE AND SUIT WAS FILED IN THE HIGH COURT OF BOM BAY. THE ASSESSEE SUCCEEDED BEFORE THE HIGH COURT. LATER ON THE TENAN CY RIGHTS WERE TRANSFERRED BY ASSESSEE TO M/S. SUMER BUILDER FOR A CONSIDERATI ON OF RS. 10,54,30,000/-. THE BUILDER DIRECTLY PAID RS. 9,00,00,000/- FOR THE NEW FLAT IN THE NAME OF THE ASSESSEE AND THE BUILDER ALSO PAID STAMP DUTY AND R EGISTRATION FEES IN RESPECT OF THIS NEW PROPERTY TO AB EARTH PVT. LTD. THE ASSE SSEE CLAIMED THAT SHE HAD INADVERTENTLY CLAIMED DEDUCTION U/S 54 AND CLAIM SH OULD BE ALLOWED U/S. 54F. THE AO NOTED THAT WHILE PURCHASE AGREEMENT FOR FLAT AT KHAR WAS AT A CONSIDERATION OF RS. 9,00,00,000/-, THE VALUE AS PE R STAMP DUTY WAS RS. 9,04,55,000/-. THUS, THE STATED CONSIDERATION FOR T HE PURCHASE WAS LOWER THAN THE READY RECKONER RATE. THE DIFFERENCE EXCEEDED BY FIFTY THOUSAND RUPEES AND, THEREFORE, THE AO SHOW CAUSED THE ASSESSEE AS TO WH Y DIFFERENCE SHOULD NOT BE BROUGHT TO TAX AS PER SECTION 56(VII)(B) OF THE ACT . THE ASSESSEE CLAIMED THAT THERE WAS AN AMENDMENT AS PER THE FINANCE ACT, 2018 , AS PER WHICH RELAXATION WAS PROVIDED IN AS MUCH AS IT WAS STIPUL ATED THAT WHERE THE DATE OF AGREEMENT FIXING THE AMOUNT OF CONSIDERATION FOR TR ANSFER OF IMMOVABLE PROPERTY AND THE DATE OF REGISTRATION ARE NOT THE S AME, THE STAMP DUTY VALUE ON THE DATE OF AGREEMENT MAY BE TAKEN FOR THE PURPO SE OF SECTION 56(VII)(B). HOWEVER ASSESSING OFFICER DID NOT ACCEPT THIS. THE AO NOTED THAT THE SHAISTA IRPHAN MOGUL 3 AMENDMENT REFERRED TO BY THE ASSESSEE DOES NOT COVE R THE CASE OF THE ASSESSEE AND, THEREFORE, ADDITION OF RS. 4,55,000/- WAS MADE . 4. UPON ASSESSEES APPEAL LEARNED CIT(A) NOTED THAT IN THE APPELLATE PROCEEDINGS, THE SUBMISSIONS FILED BEFORE THE AO WA S REITERATED. THAT REFERENCE WAS MADE TO THE SPEECH OF HON'BLE FINANCE MINISTER IN RESPECT OF THE BUDGET PRESENTED ON 01.02.2018. THAT IT WAS STATED THAT WH ERE THE STAMP DUTY VALUE DOES NOT EXCEED THE CONSIDERATION RECEIVED BY MORE THAN 5% OF THE CONSIDERATION RECEIVED OR ACCRUING SHOULD BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION. IT WAS CONTENDED THAT THE DIFFERENCE BETWEEN AGREEMENT VALUE AND THE STAMP DUTY IS HARDLY 0.5%, THEREFORE, NO AD DITION SHOULD BE MADE . 5. HOWEVER LEARNED CIT(A) WAS NOT CONVINCED. HE CON FIRMED THE ASSESSING OFFICERS DECISION WITHOUT PROPERLY ADDRESSING THE ASSESSEES SUBMISSION. HE HELD AS UNDER : I HAVE CONSIDERED THE SUBMISSIONS CAREFULLY. THE A PPELLANT WAS ASKED TO FILE COPY OF PURCHASE AGREEMENTS AND INDEX II. THE LD AR WAS ASKED TO FILE ANY SPECIFIC CASE LAW THAT COVERS THE SPECIFIC FACTS OF ITS CASE REGARDING 56(VII)(B). NO DETAILS OR REPLY WAS FURNISHED. IT IS NOTED THAT TH E APPELLANT'S CASE DOES NOT FALL WITHIN SECTION 56(VII)(B). THE APPELLANT ALSO COULD NOT CITE ANY SPECIFIC DECISION IN WHICH THE FACTS WERE IDENTICAL TO THE CASE OF THE APPELLANT. THE APPELLANT REFERRED TO SECTION 50C, WHICH IS NOT THE CAS E HERE. IN THESE FACTS, THE GROUND OF APPEAL IS DISMISSED. 6. AGAINST THIS THE ASSESSEE IS IN APPEAL BEFORE US . 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. LEARNED COUNSEL OF THE ASSESSEE HAS SUMMARIZED THE SUBMISSI ON AS UNDER :- 1. WE WOULD LIKE TO BRING YOUR HONOR'S ATTENTION TO TH E FACT THAT ASSESSEE HAD FILED HER RETURN OF INCOME ON 26.12.2016. DURING THE YEAR UNDER REVIEW THE ASSESSEE HAD PURCHASED A RESIDENTIAL FLAT AT KHAR WEST ON 01.10.2015 FOR A CONSIDERATION OF RS 9,00,00,000/- WHEREAS THE MARK ET VALUE OF THE PROPERTY WAS RS 9,04,55,000/-. 2. HOWEVER, WE WOULD LIKE TO INFORM YOUR HONOR THAT VARIATION CAN OCCUR IN RESPECT OF SIMILAR PROPERTIES IN THE SAME AREA BECAUS E OF VARIETY OF FACTORS, INCLUDING SHAPE OF THE PLOT OR LOCATION OF PROPERTY, N EARBY PUBLIC AMENITIES, SIZE OF LAND AND BUILDING, NEARBY PUBLIC HIGHWAY OR RAIL FACILITIES, ETC. FURTHER, THE NEARBY LOCALITIES THE TRANSACTION IS OF SIMILAR COST. SHAISTA IRPHAN MOGUL 4 THE SAME HAS BEEN AGREED AND STATED IN THE MEMORANDU M OF FINANCE BILL, 2018 AS FOLLOWS: IT HAS BEEN POINTED OUT THAT THIS VARIATION CAN OCCUR IN RESPECT OF SIMILAR PROPERTIES IN THE SAME AREA BECAUSE OF A VARIETY OF F ACTORS, INCLUDING SHAPE OF THE PLOT OR LOCATION. IN ORDER TO MINIMIZE HARDSHIP IN CASE OF GENUINE TRANSACTIONS IN THE REAL ESTATE SECTOR, IT IS PROPOSED TO PROVIDE THAT NO ADJUSTMENTS SHALL BE MADE IN A CASE WHERE THE VARIATIO N BETWEEN STAMP DUTY VALUE AND THE SALE CONSIDERATION IS NOT MORE THAN FIVE PERCENT OF THE SALE CONSIDERATION. WE WOULD LIKE TO BRING YOUR HONOR'S ATTENTION TO SECTI ON 50C OF THE INCOME TAX ACT, 1961.SEC 50C OF THE INCOME TAX ACT, 1961 STA TES THAT WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RE SULT 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 AUTHO RITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORITY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSA BLE SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALU E OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER : PROVIDED ALSO THAT WHERE THE VALUE ADOPTED OR ASSESSE D OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY DOES NOT EXCEED ONE HUNDRED AND [TEN] PER CENT OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER, THE CONSIDERATION SO RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VAL UE OF THE CONSIDERATION. AS PER SEC 50C OF THE INCOME TAX ACT EXPLANATION IT HA S BEEN CLEARLY STATED THAT WHERE THERE IS A DIFFERENCE BETWEEN THE MARKET VAL UE AND AGREEMENT VALUE AND THE DIFFERENCE IS BELOW TEN PERCENT OF THE MARKET VALUE THEN IN SUCH CASES SEC 50C OF THE INCOME TAX ACT, 1961 DOES NOT GET ATTRACTED. FURTHER, WE WOULD LIKE TO BRING YOUR HONOR'S ATTENTION TO THE FACT THAT ASSESSEE HAD ENTERED INTO AN AGREEMENT IN THE YEAR FY 2015-2016 AND SINCE THE VALUE OF THE PROPERTY IN THE ADJOINING AREAS WAS BELOW THE MARKET VALUE ASSESSEE HAD ALSO REGISTERED THE AGREEMENT AT RS 9,00, 00,000/- WHEREAS THE MARKET VALUE OF THE PROPERTY WAS RS 9,04,55,000/-. CONSIDERING THE HARDSHIPS FACED BY THE HONEST TAX PAY ERS THE HONORABLE FINANCE MINISTER RECOGNIZED THE SAME AND AMENDED TH E PROVISIONS OF SEC 50C OF THE INCOME TAX ACT, 1961. WHEREIN THE HONORABL E FINANCE MINISTER HAD AGREED THAT THE STRINGENT PROVISIONS OF SEC 50C C REATES HARDSHIPS TO THE HONEST TAX PAYERS. THUS, AN AMENDMENT BEING CURATIVE IN NATURE WAS INTRODUCED IN THE FINANCE BILL, 2018. ALSO, LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO C URE THESE SHORTCOMINGS OF PROVISION, AND THUS OBVIATE THE UNINTENDED HARDS HIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL P OSITION TO THE EFFECT THAT SHAISTA IRPHAN MOGUL 5 A CURATIVE AMENDMENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN NATURE. HENCE, THE INSERTION OF THIRD PROVISO TO SECTION 50C MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF T IME WHEN THE RELATED LEGAL PROVISION WAS INTRODUCED, AS THIS AMENDMENT IS PROCEDURAL ONE TO COMPUTE THE VALUE OF PROPERTY. SAME HAS BEEN UPHELD IN THE HONORABLE SUPREME COURT IN THE CASE OF ALLIED MOTERS (P) LTD, 91 TAXMAN 205 (SC) AS FOLLOWS: 'A PROVISO WHICH IS INSERTED TO REMEDY UNINTENDED CON SEQUENCES AND TO MAKE THE PROVISO WORKABLE, A PROVISO WHICH SUPPLI ES AN OBVIOUS OMISSION IN THE SECTION AND IS REQUIRE TO BE READ INTO THE SECTION TO GIVE THE SECTION A REASONABLE INTERPRETATION, REQUIRES TO BE TREATED AS RETROSPECTIVE IN OPERATION SO THAT A REASONABLE INTERPR ETATION CAN BE GIVEN TO THE SECTION AS A WHOLE' IN CASE OF AGRA BENCH IN RAJEEV KUMAR AGARWAL, NEW DELHI VS ASSESSEE ITA NO. 338/AGRA/2013 AY 2007-08 HAS STATED THAT WHEN LE GISLATURE IS REASONABLE AND COMPASSIONATE ENOUGH TO UNDO THE UNDUE HARDSHIP CAUSED BY THE STATUE 'SUCH AN AMENDMENT IN LAW, IN VIEW OF WEL L SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIVE AMENDMENT TO AVOID U NINTENDED CONSEQUENCE IS TO BE TREATED AS RETROSPECTIVE IN NATU RE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY. WE THUS, HUMBLY REQUEST YOUR HONOR TO CONSIDER THE AM ENDMENT IN SEC 50C OF THE INCOME TAX ACT, 1961 AS AN AMENDMENT HAVING R ETROSPECTIVE EFFECT FURTHER, IN THE CASE LAW OF SMT. CHERYL MARIA FERNANDE S, VS. ITO (IT)-2(3)(L), MUMBAI 'I' BENCH, ITA NO. 4850/MUM/2019 AY 2011-201 2 THE HONORABLE ITAT -MUMBAI HAS HELD THAT THE LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMINGS OF PROVISIONS, AND THUS OBVI ATE THE UNINTENDED HARDSHIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIVE AMENDMENT TO AVOID U NINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN NAT URE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, THE INSERTION OF SECOND PR OVISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN THE REL ATED LEGAL PROVISION WAS INTRODUCED. IN OUR HUMBLE UNDERSTANDING, IT IS A CASE OF A CURATI VE AMENDMENT TO TAKE CARE OF UNINTENDED CONSEQUENCES OF THE SCHEME OF SE C 50C. THIS, INSERTION OF THE THIRD PROVISO TO SEC 5OC(1) IS IN THE NATURE OF REMEDIAL MEASURE TO ADDRESS A BONAFIDE SITUATION WHERE THERE I S A LITTLE JUSTIFICATION FOR INVOKING AN ANTI-AVOIDANCE PROVISO. FURTHER, IN CASE OF M/S JOHN FLOWER (INDIA) PVT. LTD . IN ITA NO. 7545/MUM/2014, FOR AY 2010-11 THE DIFFERENCE BETWEE N THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY AND DECLARED B Y THE ASSESSEE IS LESS THAN 10%. THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE HONORABLE SHAISTA IRPHAN MOGUL 6 COORDINATE BENCH, WE HEREBY DIRECT THE AO TO ADOPT THE VALUE AS DECLARED BY THE ASSESSEE. ALSO, IN CASE OF CHANDRA PRAKASH JHUNJUNWALA VS. DC IT, CC-3(4), KOLKATA ITA NO. 2351/KOL/2017 IT WAS HELD THAT WE HOLD THAT THE INSERTION OF THIRD PROVISO TO SEC 50C OF THE ACT IS DECLARATORY AND CURAT IVE IN NATURE. THAT IS, THE THIRD PROVISO TO SEC 50C OF THE ACT RELATES TO COMPUTATI ON OF VALUE OF PROPERTY AS EXPLAINED BY US ABOVE, HENCE IT IS NOT A SUBSTANTIVE AMENDMENT, IT IS ONLY A PROCEDURAL AMENDMENT THEREFORE THE CO ORD INATE BENCHES OF ITAT USED TO IGNORE THE VARIATION UP TO 10%, THEREFORE THE S AID AMENDMENT SHOULD BE RETROSPECTIVE. QUITE CLEARLY THEREFORE, EVEN WHEN THE STATUTE DOES NOT SPECIFICALLY STATE SO, SUCH AMENDMENTS, IN THE LIGHT OF THE DETAILED DISCUSSIONS ABOVE, CAN ONLY BE TREATED AS RETROSPECTIV E AND EFFECTIVE FROM THE DATE RELATED STATUTORY PROVISIONS WAS INTRODUCED. VIE WED THUS, THE THIRD PROVISO TO SEC 50C SHOULD BE TREATED AS CURATIVE IN N ATURE AND WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL 2003, I.E. THE SATE EFFECTIVE FROM WHICH SECTION 50C WAS INTRODUCED. FURTHER, SEC 43CA OF THE INCOME TAX ACT, 1961 STATE THAT WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TH E TRANSFER BY AN ASSESSEE OF AN ASSET (OTHER THAN 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 FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSA BLE SHALL, FOR THE PURPOSES OF COMPUTING PROFITS AND GAINS FROM TRANSFE R OF SUCH ASSET, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEI VED OR ACCRUING AS A RESULT OF SUCH TRANSFER: PROVIDED THAT WHERE THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY DO ES NOT EXCEED ONE HUNDRED AND 84 [FIVE] PER CENT OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER, THE CONSIDERATION SO RECEIVED O R ACCRUING AS A RESULT OF THE TRANSFER SHALL, FOR THE PURPOSES OF COMPUTING PRO FITS AND GAINS FROM TRANSFER OF SUCH ASSET, BE DEEMED TO BE THE FULL VALU E OF THE CONSIDERATION. (2) THE PROVISIONS OF SUB-SECTION (2) AND SUB-SECTI ON (3) OF SECTION 5OC SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO DETERMINATION OF THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE UNDER SUB-SECTION (1). THUS, SEC 43CA CLEARLY STATES THAT THERE IS A NEXUS BE TWEEN SEC 50C R/W SECTION 43CA FURTHER, SEC 56 (VII)(B) OF THE INCOME TAX ACT, 1961 STATES THAT (VII) WHERE AN INDIVIDUAL OR A HINDU UNDIVIDED FAMI LY RECEIVES, IN ANY PREVIOUS YEAR, FROM ANY PERSON OR PERSONS ON OR AFT ER THE 1ST DAY OF OCTOBER, 2009 BUT BEFORE THE 1ST DAY OF APRIL, 2017 (B) ANY IMMOVABLE PROPERTY, SHAISTA IRPHAN MOGUL 7 (I) WITHOUT CONSIDERATION, THE STAMP DUTY VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE STAMP DUTY VALUE OF SUCH P ROPERTY; (II) FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THOUSAND RUPEE S, THE STAMP DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH CONSIDE RATION: (C) ANY PROPERTY, OTHER THAN IMMOVABLE PROPERTY, (I) WITHOUT CONSIDERATION, THE AGGREGATE FAIR MARKET V ALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE WHOLE OF THE AGGR EGATE FAIR MARKET VALUE OF SUCH PROPERTY; (II) FOR A CONSIDERATION WHICH IS LESS THAN THE AGGREG ATE FAIR MARKET VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THO USAND RUPEES, THE AGGREGATE FAIR MARKET VALUE OF SUCH PROPERTY AS E XCEEDS SUCH CONSIDERATION : PROVIDED THAT WHERE THE STAMP DUTY VALUE OF IMMOVABLE PROPERTY AS REFERRED TO IN SUB-CLAUSE (B) IS DISPUTED BY THE ASSESSEE ON G ROUNDS MENTIONED IN SUB-SECTION (2) OF SECTION 50C, THE ASSESSING OFFICER MAY REFER THE VALUATION OF SUCH PROPERTY TO A VALUATION OFFICER, AND THE PROVI SIONS OF SECTION 50C AND SUB-SECTION (15) OF SECTION 155 SHALL, AS FAR AS MAY BE, APPLY IN RELATION TO THE STAMP DUTY VALUE OF SUCH PROPERTY. THUS, WE REQUEST YOUR HONOR TO CONSIDER THE DIRECT NE XUS BETWEEN SEC 50C, 43CA AND SEC 56(VII)(B) OF THE INCOME TAX ACT, 1961. WE THUS HUMBLY REQUEST YOUR HONOR TO CONSIDER THE AMEN DMENT IN SEC 50C OF THE INCOME TAX ACT, 1961 TO BE CURATIVE IN NATURE AND THUS, TO HAVE A RETROSPECTIVE EFFECT. FURTHER, REQUEST YOUR HONOR TO DI SALLOW THE ADDITION MADE BY THE ASSESSING OFFICER OF RS 4,55,000/-. THER E IS A MINIMAL DIFFERENCE OF 0.51% BETWEEN THE MARKET VALUE AND AGREEMENT VALU E WHICH IS BELOW THE PERMISSIBLE LIMIT AS PER SEC 50C OF THE INCOME TAX ACT, 1961. 8. PER CONTRA LEARNED DEPARTMENTAL REPRESENTATIVE R ELIED UPON THE ORDERS OF THE AUTHORITY BELOW. 9. UPON CAREFUL CONSIDERATION WE NOTE THAT THE DIFF ERENCE BETWEEN VALUE DECLARED AND VALUE AS PER STAMP VALUE AUTHORITY IS LESS THAN 10%. THIS IS WITHIN THE TOLERANCE LIMIT SPECIFIED IN SECTION 50C . THE AUTHORITIES BELOW HAVE REJECTED IT ON THE PREMISE THAT THE TOLERANCE LIMIT WAS INTRODUCED BY THE FINANCE ACT, 2018; HENCE IT IS NOT APPLICABLE FOR T HE YEAR UNDER CONSIDERATION. WE NOTE THE PLEA THAT THE AMENDMENT WAS INTENDED TO CURE A HARDSHIP AND HENCE RETROSPECTIVE HAS BEEN DULY ACCEPTED IN THE I TAT DECISION REFERRED IN THE SHAISTA IRPHAN MOGUL 8 ASSESSEES SUBMISSION ABOVE. MOREOVER, THE SPEECH O F HON'BLE FINANCE MINISTER WHILE INTRODUCING THE PROVISIONS DULY SUPPORT THIS PREMISE. MOREOVER, IN SUCH SITUATION CURATIVE PROVISION TO REMOVE HARDSHIP SHO ULD BE RETROSPECTIVE IS DULY SUPPORTED BY HON'BLE SUPREME COURT DECISION IN THE CASE OF ALLIED MOTERS (P) LTD. (91 TAXMAN 205) BY THE FOLLOWING EXPOSITION. 'A PROVISO WHICH IS INSERTED TO REMEDY UNINTENDED CON SEQUENCES AND TO MAKE THE PROVISO WORKABLE, A PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION IN THE SECTION AND IS REQUIRE TO BE READ INTO THE SECTION TO GIVE THE SECTION A REASONABLE INTERPRETATION, REQUIRES TO BE TREATED AS R ETROSPECTIVE IN OPERATION SO THAT A REASONABLE INTERPRETATION CAN BE GIVEN TO THE SECTION AS A WHOLE' UNDOUBTEDLY THIS AMENDMENT WAS DONE TO OBVIATE HARD SHIPS ARISING OUT OF MINOR VARIATION IN VALUE OF TRANSACTION QUA 50C VAL UATION. IN THIS VIEW OF THE MATTER ASSESSEES PLEA SUCCEEDS. HENCE, WE SET ASID E THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 11. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 1.7.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 01/07/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI
