Sai Essen Developers, Pune V. Principal Commissioner Of Income Tax Central Circle 2(4), Pune

ITA 821/PUN/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6436 (ITAT-PUNE)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2018-2019
• Appeal Filed On: 18-04-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Retrospective amendment
• Section: 43CA; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “B” BENCH : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER I.T.A.No.821/PUN./2024 Assessment Year 2018-2019 Sai Essen Developers, ABC Classic, G-Block, MIDC, Thermex Chowk, Chinchwad, PUNE-411019. Maharashtra. PAN ABRFS7781C vs. The PCIT (Central), Central Circle-2(4), Aayakar Sadan, Bodhi Towers, 548/2B, Salisbury Park, Gultekdi, PUNE – 411 037. Maharashtra. (Appellant) (Respondent) For Assessee : -None- For Revenue : Shri P.R. Mane Date of Hearing : 18.06.2024 Date of Pronouncement : 19.06.2024 ORDER PER SATBEER SINGH GODARA, J.M. : This assessee’s appeal for assessment year 2018- 2019, arise against the PCIT (Central), Pune, Pune’s Din and Order No.ITBA/REV/F/REV5/2023-24/1061270442(1), dated 21.02.2024, in proceedings u/s. 143(3) of the Income Tax Act, 1961 (in short “the Act”). Case called twice. None appears at assessee’s behest. It is accordingly proceeded ex-parte. 2. It emerges with the able assistance coming from the Revenue side that the assessee’s sole substantive grievance canvassed herein challenges correctness of learned PCIT, Central, Pune’s sec.263 revision directions terming the 2 ITA.No.821/PUN./2024 corresponding sec.143(3) assessment as an erroneous one causing prejudice to interest of the revenue for the precise reason that the same had failed to consider the issue of applicability of sec.43CA of the Act in the following terms : “8. In view of the above facts and circumstances, I hold that the Assessing Officer has passed the assessment order dated 24.06.2021 for A.Y. 2018-19 without making necessary examination/verification/enquiries on the issue of applicability of section 43CA of the Act regarding the difference in sale consideration and the stamp duty valuation. I, therefore hold that the assessment order for A.Y. 2018-19 dated 24.06.2021 passed by the Assessing Officer u/s 143(3) of the Act to be erroneous in so far as it is prejudicial to the interest of revenue. Accordingly, the said assessment order dated 24.06.2021 is hereby set aside to the file of Assessing Officer for examining the above issue in detail while framing the fresh assessment order. The Assessing Officer shall make necessary examination, verification and enquiries in respect of the above issue after giving adequate and reasonable opportunity of being heard to the assessee.” This leaves the assessee aggrieved. 3. Learned CIT-DR representing the department has placed before us the relevant assessment record, and more 3 ITA.No.821/PUN./2024 particularly, copy of the Assessing Officer’s sec.142(1) notice dated 10.03.2021 followed by the assessee’s twin reply(ies) thereto dated 26.03.2021 and 14.04.2021; respectively wherein it had failed to file and prove the details regarding the difference in actual sale price vis-à-vis the stamp price of the corresponding residential units sold in the relevant previous year. Learned CIT-DR submitted in this factual backdrop that the PCIT herein has rightly exercised his jurisdiction so as to issue necessary directions to the assessing authority for examining the issue of applicability of sec.43CA afresh. 4. We have given our thoughtful consideration to the assessee’s pleadings and Revenue’s vehement contentions. We find no reason to interfere with the learned PCIT’s revision directions in principle as the assessee appears not to have submitted the corresponding details so as to negate the applicability of sec.43CA (supra). The fact also remains that there is no indication in the instant case file as to whether there existed any difference between the assessee’s actual sale price and the stamp price which could attract applicability of sec.43CA of the Act. We deem it relevant to observe that the assessee herein had pleaded applicability of tolerance margin of 5% between the foregoing twin prices; as increased by 10% vide Finance Act 2020, w.e.f. 01.04.2021, in sec.43CA(1) of the Act. The Revenue’s case before us is that we are in assessment year 2018-2019 wherein the foregoing higher tolerance margin 4 ITA.No.821/PUN./2024 does not carry any retrospective effect. Learned CIT-DR could hardly dispute that this tribunal’s decision in C. Maria Fernandes vs. ITO [2021] 187 ITD 738 (Mum.) has settled the issue vis-à-vis the corresponding para materia provision of sec.50C applicable in case of transfer of a “capital asset” thereby holding that this tolerance margin of 10% carries retrospective effect being curative in nature. Faced with this situation, whilst upholding the learned PCIT’s directions in principle, we make it clear as a matter of abundant caution that the consequential assessment herein would duly consider the assessee’s case in light of foregoing tolerance margin, as per law, after affording due opportunity to the taxpayer. Ordered accordingly. 5. This assessee’s appeal is dismissed in above terms. Order pronounced in the open Court on 19.06.2024. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 19 th June, 2024 VBP/- Copy to 1. The appellant 2. The respondent 3. The CCIT, Pune concerned 4. D.R. ITAT, “B” Bench, Pune. 5. Guard File. //By Order// //True Copy // Sr. Private Secretary, ITAT, Pune Benches, Pune.