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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI INTURI RAMA RAO & SHRI S.S. VISWANETHRA RAVI
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.
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 stamp duty and actual consideration being less than 10% in the facts and circumstances of the case.
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 for A.Y. 2015-16 and 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. Shop/ Name of Purchaser Date of Sale Sale Price Market Diff. % Valuation Diff. % No. Office/ Value between by DVO Between Flat actual actual No. considera considerat tion and ion and stamp DVO duty valuation value 1 2 3 4 5 6 7 8 9 10=(9-5) 11 1 S-5 Krishna 39.88 0.00 01-01-2015 2400000 3357000 957000 2400000 0 Construction 2 S-7 Kavita Sunil 52.20 16.00 12-03-2015 500000 761000 261000 580000 80000 Bidada 3 S-8 Urmila Mohanlal 58.43 2.51 11-12-2014 3500000 5545000 2045000 3588000 88000 Karwa 4 S- Babulal 59.91 119000 3.40 9+10 Radhakishan 11-12-2014 3500000 5597000 2097000 3619000 Bidada 5 S-12 Lalita Yashwant 57.93 1698000 198000 13.20 Pethkar Sheetal Gurunath 10-12-2014 1500000 2369000 869000 Jaliminche 6 S-13 Pratibha Ranjeet 52.28 1959000 159000 8.83 Jagtap Anuradha 10-12-2014 1800000 2741000 941000 Shriniwas Patil 7 S-14 Bhange P. S. 11-12-2014 1700000 1852000 152000 8.94 1700000 0 0.00 8 F-203 Anil Vyanketesh 30.50 925000 46.25 15-11-2014 2000000 2610000 610000 2925000 Maslekar 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 0.29 0 0.00 21-01-2015 2400000 2407000 7000 2400000 Daga 12 F-403 Shailesh 0.38 0 0.00 21-01-2015 2600000 2610000 10000 2600000 Omprakash Daga 27750000 36057000 8307000 29324000 1574000
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 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.
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.
In the result, the appeal of assessee is partly allowed.
Order pronounced in the open court on 05th September, 2023.