M/S NISARG DEVELOPERS, PUNE V. DCIT CIRCLE 7, PUNE, PUNE

ITA 744/PUN/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1995 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Pune
• Assessment Year: 2017-2018
• Appeal Filed On: 09-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R.Y. BALAWADE
• Assessee Lawyers: VISHANK CHAUDHARY
• Keywords: Sale consideration of property below Jantri Value; Retrospective amendment
• Section: 43CA; 113

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND Ms. ASTHA CHANDRA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.744/PUN/2024 नधा रण वष Assessment Year : 2017-18 M/s. Nisarg Developers, S.No.84/3B, Gund Vasti Pune, Solapur Road, Manjari, Pune 412 307, Maharashtra PAN : AAGFN9362G Vs. DCIT, Circle-7, Pune Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of Addl/JCIT(A)-1, Chandigarh dated 12.02.2024 for the assessment year 2017-18. 2. Briefly, the facts of the case are that the appellant is a partnership firm engaged in the business of Builders and Developers. The Return of Income for the A.Y. 2017-18 was filed on 25.10.2017 declaring total income of Rs.19,86,920/-. The case was selected for Scrutiny under CASS and statutory notice u/s143(2) was issued to the assessee. On the basis of information provided by the assssee, the Assessing Officer (AO) noticed that the assessee sold flat, whose sale consideration is less than Assessee by : Shri Vishank Chaudhary Revenue by : Shri R.Y. Balawade Date of hearing : 30.05.2024 Date of pronouncement : 30.05.2024 ITA No.744/PUN/2024 2 the value adopted by the State Govt. for stamp duty purposes. Against the said return of income, the assessment was completed by the AO vide order dt. 12.12.2019 passed u/s.143(3) of the Act making addition of Rs.1,45,940, being difference in the Stamp duty Value and the Agreement Value. While doing so, the AO took the stamp duty value as the full value of the consideration invoking the provisions of section 43CA. 3. Being aggrieved, an appeal was filed before the CIT(A) contending that section 43CA(3) and (4) clearly provide that where the date of agreement fixing the value of consideration for transfer of the asset and the date of registration of such transfer of asset are not the same, the stamp value prevailing as on the date of agreement shall be taken. The appellant placing reliance on the decision of Pune Bench in the case of Rahul Construction Vs. DCIT – ITA No.143/PUN/2007 contended that difference in sale consideration and stamp duty valuation is less than 5%, the same should be ignored. However, the ld. CIT(A) rejecting the contentions of the appellant confirmed the addition made by the AO. 4. Being aggrieved, the appellant is in appeal before the Tribunal in the present appeal. 5. We heard the rival submissions and carefully perused the relevant material on record. The issue in the present that arises for our consideration is whether the first proviso to section 43CA had retrospective effect or not? This issue is no more res integra as it is covered by Coordinate Benches of the Tribunal in catena of following decisions, the tolerance band introduced by Finance Act, 2017 w.e.f.01.04.2018 has retrospective effect : ITA No.744/PUN/2024 3 1. Chandra Prakash Jhunjhunwala Vs. Dy.CIT (2020) 113 taxmann.com 24 /181 ITD 185 (Kal-Trib.) 2. John Flower (India) (P) Ltd. Vs. Dy.CIT – IT Appeal No.7545/Mum/2014, dt. 25.01.2017 3. Karb Associates (P) Ltd. Vs. Dy.CIT – IT Appeal No.1941/Kol/2019, dt. 25.08.2021 4. Maria Fernandes Cheryl Vs. ITO (IT) (2021) 123 taxmann.com 252/187 ITD 7387 (Mum.) 5. Sandeep Kumar Poddar Vs. ITO (2023) 151 taxmann.com 18 (Kolkata Trib.) 6. In the extant case under consideration, the difference between the value for stamp duty purposes and the actual sale consideration is less than 5%, therefore, following the decision of Coordinate Bench (supra), we hold that no addition is warranted. Thus, the solitary ground raised by the assessee stands allowed. 7. In the result, the appeal filed by the assessee is allowed. Order pronounced on this 30 th day of May, 2024. Sd/- Sd/- (ASTHA CHANDRA) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; दनांक / Dated : 30 th May, 2024 Satish ITA No.744/PUN/2024 4 आदेश क ितिलिप अ ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / The Appellant. 2. यथ / The Respondent. 3. The Pr.CIT concerned 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब च, पुणे / DR, ITAT, SMC” Bench, Pune. 5. गाड फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND Ms. ASTHA CHANDRA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.744/PUN/2024 नधा रण वष Assessment Year : 2017-18 M/s. Nisarg Developers, S.No.84/3B, Gund Vasti Pune, Solapur Road, Manjari, Pune 412 307, Maharashtra PAN : AAGFN9362G Vs. DCIT, Circle-7, Pune Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of Addl/JCIT(A)-1, Chandigarh dated 12.02.2024 for the assessment year 2017-18. 2. Briefly, the facts of the case are that the appellant is a partnership firm engaged in the business of Builders and Developers. The Return of Income for the A.Y. 2017-18 was filed on 25.10.2017 declaring total income of Rs.19,86,920/-. The case was selected for Scrutiny under CASS and statutory notice u/s143(2) was issued to the assessee. On the basis of information provided by the assssee, the Assessing Officer (AO) noticed that the assessee sold flat, whose sale consideration is less than Assessee by : Shri Vishank Chaudhary Revenue by : Shri R.Y. Balawade Date of hearing : 30.05.2024 Date of pronouncement : 30.05.2024 ITA No.744/PUN/2024 2 the value adopted by the State Govt. for stamp duty purposes. Against the said return of income, the assessment was completed by the AO vide order dt. 12.12.2019 passed u/s.143(3) of the Act making addition of Rs.1,45,940, being difference in the Stamp duty Value and the Agreement Value. While doing so, the AO took the stamp duty value as the full value of the consideration invoking the provisions of section 43CA. 3. Being aggrieved, an appeal was filed before the CIT(A) contending that section 43CA(3) and (4) clearly provide that where the date of agreement fixing the value of consideration for transfer of the asset and the date of registration of such transfer of asset are not the same, the stamp value prevailing as on the date of agreement shall be taken. The appellant placing reliance on the decision of Pune Bench in the case of Rahul Construction Vs. DCIT – ITA No.143/PUN/2007 contended that difference in sale consideration and stamp duty valuation is less than 5%, the same should be ignored. However, the ld. CIT(A) rejecting the contentions of the appellant confirmed the addition made by the AO. 4. Being aggrieved, the appellant is in appeal before the Tribunal in the present appeal. 5. We heard the rival submissions and carefully perused the relevant material on record. The issue in the present that arises for our consideration is whether the first proviso to section 43CA had retrospective effect or not? This issue is no more res integra as it is covered by Coordinate Benches of the Tribunal in catena of following decisions, the tolerance band introduced by Finance Act, 2017 w.e.f.01.04.2018 has retrospective effect : ITA No.744/PUN/2024 3 1. Chandra Prakash Jhunjhunwala Vs. Dy.CIT (2020) 113 taxmann.com 24 /181 ITD 185 (Kal-Trib.) 2. John Flower (India) (P) Ltd. Vs. Dy.CIT – IT Appeal No.7545/Mum/2014, dt. 25.01.2017 3. Karb Associates (P) Ltd. Vs. Dy.CIT – IT Appeal No.1941/Kol/2019, dt. 25.08.2021 4. Maria Fernandes Cheryl Vs. ITO (IT) (2021) 123 taxmann.com 252/187 ITD 7387 (Mum.) 5. Sandeep Kumar Poddar Vs. ITO (2023) 151 taxmann.com 18 (Kolkata Trib.) 6. In the extant case under consideration, the difference between the value for stamp duty purposes and the actual sale consideration is less than 5%, therefore, following the decision of Coordinate Bench (supra), we hold that no addition is warranted. Thus, the solitary ground raised by the assessee stands allowed. 7. In the result, the appeal filed by the assessee is allowed. Order pronounced on this 30 th day of May, 2024. Sd/- Sd/- (ASTHA CHANDRA) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; दनांक / Dated : 30 th May, 2024 Satish ITA No.744/PUN/2024 4 आदेश क ितिलिप अ ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / The Appellant. 2. यथ / The Respondent. 3. The Pr.CIT concerned 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब च, पुणे / DR, ITAT, SMC” Bench, Pune. 5. गाड फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune