Rishikesh Builders & Developers, Solapur V. Assistant Commissioner of Income Tax, Circle-2,Solapur, Solapur

ITA 558/PUN/2023

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The case involves Rishikesh Builders & Developers appealing against the order of the National Faceless Appeal Centre, which had added a difference of Rs. 83,02,000 to the assessee's income under section 43CA of the Income Tax Act. This difference was between the sale price and the market value (stamp duty value) of properties sold. The Tribunal examined whether the first proviso to section 43CA, effective from 01-04-2021, which allows for no addition if the difference is less than 10%, applies retrospectively. The Tribunal found that for properties with a difference of less than 10%, no addition could be made, thus partly allowing the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132978 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 28-08-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 08-05-2023
• Other Referred Cases: Sai Bhargavanath Infra in ITA No. 1332/PUN/2019, Vatika Township Pvt. Ltd. reported in 367 ITR 466 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 43CA

Judgement Text

आयकर अपीलीय अधिकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.558/PUN/2023 धििाारण वर्ा / Assessment Year : 2015-16 Rishikesh Builders & Developers, B 11/14, Damani Complex, Data Chowk, Solapur – 413007 PAN : AAGFR7962L .......अपीलार्थी / Appellant बिाम / V/s. Asst. Commissioner of Income Tax, Circle – 2, Solapur ......प्रत्यर्थी / Respondent Assessee by : Shri Pramod S. Shingte Revenue by : Shri M.G. Jasnani सुिवाई की तारीख / Date of Hearing : 29-08-2023 घोर्णा की तारीख / Date of Pronouncement : 05-09-2023 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This appeal by the assessee against the order dated 10-03-2023 passed by the National Faceless Appeal Centre, Delhi (“NFAC”) for assessment year 2015-16. 2. The ld. AR, Shri Pramod S. Shingte requested to take up ground No. 2 as in which the relief is sought, the difference in valuation between 2 ITA No.558/PUN/2023, A.Y. 2015-16 stamp duty and actual consideration being less than 10% in the facts and circumstances of the case. 3. We note that the assessee is firm engaged in the business of construction and sale of residential flats, shops etc. It is noted that the assessee sold the flats and shops mentioned in tabular form in para 6 of the assessment order and the AO asked the assessee to submit the market value (the ready reckoner value). The details as reflecting in tabular form in para 6 shows the nature of property, name of purchaser, date of sale, sale price and market value. According to the AO provisions u/s. 43CA of the Act is applicable and added the difference between sale price (sale consideration) and market value (stamp duty value as adopted by the Government) of Rs.83,02,000/- (Rs.3,60,57,000/-) – Rs.2,77,55,000/-) to the total income of the assessee u/s. 43CA of the Act. It was contended before the CIT(A) that the difference between sale value and market value is less than 10% in some cases and requested to delete the addition made on account of difference to such units. The CIT(A) held that the said request cannot be accepted in view of insertion of first proviso to section 43CA of the Act w.e.f. 01-04-2021. The ld. AR drew our attention to chart placed at page 1 of the paper book and submits that the properties stand at Sr. No. 1, 2, 3, 4, 5, 6 & 8 being difference more than 10% are liable to be confirmed, rest are to be given benefit in terms of orders passed by the Tribunal. The ld. AR drew our attention to the order of Mumbai Tribunal and argued that the insertion of first proviso to section 43CA of the Act is retrospective effect since 2003, which was followed by other Benches of ITAT and referred to pages 20, 37 and 44 of the paper book. Further, he placed on record the order dated 17-08-2022 in the case of Sai Bhargavanath Infra in ITA No. 1332/PUN/2019 for A.Y. 2015-16 and 3 ITA No.558/PUN/2023, A.Y. 2015-16 argued that the Pune Tribunal by placing reliance on the decision of Hon’ble Supreme Court in the case of Vatika Township Pvt. Ltd. reported in 367 ITR 466 (SC) held the proviso to section 43CA of the Act which came into effect from 01-04-2021 as retrospective effect. In view of the same, the comparability chart as provided by the assessee at page 1 of the paper book is reproduced hereunder for ready reference : Sr. No. Shop/ Office/ Flat No. Name of Purchaser Date of Sale Sale Price Market Value Diff. between actual considera tion and stamp duty value % Valuation by DVO Diff. Between actual considerat ion and DVO valuation % 1 2 3 4 5 6 7 8 9 10=(9-5) 11 1 S-5 Krishna Construction 01-01-2015 2400000 3357000 957000 39.88 2400000 0 0.00 2 S-7 Kavita Sunil Bidada 12-03-2015 500000 761000 261000 52.20 580000 80000 16.00 3 S-8 Urmila Mohanlal Karwa 11-12-2014 3500000 5545000 2045000 58.43 3588000 88000 2.51 4 S- 9+10 Babulal Radhakishan Bidada 11-12-2014 3500000 5597000 2097000 59.91 3619000 119000 3.40 5 S-12 Lalita Yashwant Pethkar Sheetal Gurunath Jaliminche 10-12-2014 1500000 2369000 869000 57.93 1698000 198000 13.20 6 S-13 Pratibha Ranjeet Jagtap Anuradha Shriniwas Patil 10-12-2014 1800000 2741000 941000 52.28 1959000 159000 8.83 7 S-14 Bhange P. S. 11-12-2014 1700000 1852000 152000 8.94 1700000 0 0.00 8 F-203 Anil Vyanketesh Maslekar 15-11-2014 2000000 2610000 610000 30.50 2925000 925000 46.25 9 F-504 Amar A. Kale 19-01-2015 2900000 3105000 205000 7.07 2900000 0 0.00 10 F-603 More Priuanshu V. 23-03-2015 2950000 3103000 153000 5.19 2955000 5000 0.17 11 F-402 Manisha Shailesh Daga 21-01-2015 2400000 2407000 7000 0.29 2400000 0 0.00 12 F-403 Shailesh Omprakash Daga 21-01-2015 2600000 2610000 10000 0.38 2600000 0 0.00 27750000 36057000 8307000 29324000 1574000 4. On an examination of the above which clearly shows the difference between sale price and value adopted by the Government are less than 10% for properties stand at Sr. No. 7, 9, 10, 11 and 12. The ld. DR did not dispute the same. Therefore, in view of the order of this Tribunal the addition made against the properties for which the difference is less than 10%, no addition could be made on such properties u/s. 43CA of the Act. Thus, addition by way of difference being 10% less between sale 4 ITA No.558/PUN/2023, A.Y. 2015-16 consideration and stamp duty added by the AO and as confirmed by the CIT(A) are deleted, rest are confirmed. Thus, ground No. 2 raised by the assessee is allowed. 5. In view of our decision in ground No. 2, the ground Nos. 1 and 3 becomes infructuous, requiring no adjudication. Thus, ground Nos. 1 and 3 raised by the assessee is dismissed as infructuous. 6. In the result, the appeal of assessee is partly allowed. Order pronounced in the open court on 05 th September, 2023. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ददिांक / Dated : 05 th September, 2023. रधव आदेश की प्रधतधलधप अग्रेधर्त / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The concerned CIT, Pune. 4. धवभागीय प्रधतधिधि, आयकर अपीलीय अधिकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गार्ा फ़ाइल / Guard File. //सत्याधपत प्रधत// True Copy// आदेशािुसार / BY ORDER, वररष्ठ धिजी सधचव / Sr. Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune