M/S. NAVYUG INFRAPROJECTS PVT. LTD,JAIPUR vs. DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-4, JAIPUR

In this appeal, the assessee is aggrieved for addition U/s 43CA of the Act amounting to Rs. 11,12,848/-.

Rival contentions have been heard and record perused. Facts in brief are that the assessee is a private limited company engaged in 2 ITA 376/JP/2018_ Navyug Infraprojects P. Ltd. Vs DCIT the business of construction. A search was conducted on 30.10.2014. The Assessing Officer completed assessment u/s 143(3)/153A on 15.12.2016 determining total income at Rs. 13,75,398/- inter-alia making addition of Rs. 11,12,848/- u/s 43CA of the Act.

By the impugned order, the ld. CIT(A) confirmed the action of the A.O., against which the assessee is in further appeal before the ITAT.

It was argued by the ld AR of the assessee that the assessee company has sold a flat no. 402, Fourth Floor, D-237, Hanuman Nagar, Jaipur for an apparent consideration of Rs. 50,00,000/-. As against this apparent consideration of Rs. 50,00,000/- the sub-registrar has valued the property for purposes of Stamp Duty & Registration at Rs. 61,12,848/- i.e. more by Rs. 11,12,848/-. In view of this fact alone the Learned Assessing Officer has straight forward made an addition of Rs. 11,12,848/- u/s 43CA. No opportunity was granted to the assessee for putting the defense. Further the Learned Assessing Officer has also not followed the statutory procedure laid down u/s 43CA of the Act. Our attention was invited to the letter dated 05/12/2016 written by the assessee to the A.O. objecting for 3 ITA 376/JP/2018_ Navyug Infraprojects P. Ltd. Vs DCIT taking value as determined by the Sub-Registrar on the plea that the property sold was not up to the mark and was in the bad condition. As per the ld AR, under such facts and circumstances, the A.O. should have referred the matter to the DVO before jumping to the conclusion and taking the valuer determined by the Sub-Registrar. He also invited our attention to the objection raised before the ld. CIT(A) to this effect.

On the other hand, the ld CIT-DR has relied on the orders passed by the lower authorities.

We have considered the rival contentions and carefully gone through the orders of the authorities below and found from the record that the assessee is engaged in the business of real estate as a builder. During the year under consideration, the assessee has sold one flat No. 402, situated at Hanuman Nagar, Jaipur at a sale consideration of Rs. 50.00 lacs whereas the value was adopted by the Sub-Registrar for charging of stamp duty at Rs. 61,12,848/-. The A.O. substituted the value taken by the Sub-Registrar and added the difference U/s 43CA of the Act. However, an objection was raised by the assessee to support the sale consideration shown in the sale deed. Similar

4 ITA 376/JP/2018_ Navyug Infraprojects P. Ltd. Vs DCIT objection was also raised before the ld. CIT(A). When such objection is raised, the A.O. is bound to refer the matter to the DVO for valuation before substituting the value taken by the Sub-Registrar for stamp duty purposes. As per provisions of section 50C(2)(a) if the assessee claims before any Assessing Officer that the value adopted or assessed or assessable by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; then the matter has to go to the valuation cell of the department. In this case also apparently the valuation taken by the stamp authorities exceeded the apparent consideration shown by the assessee in the registration deed and accordingly the Assessing Officer was required to refer the valuation of the property to the valuation cell of the department. However, from the record we found that the assessee has raised objection at the fag end when the assessment was going to time barred, therefore, even if the AO has referred the matter to the DVO, there was no probability of receiving valuation report from the DVO in such a short time, in so far as the assessment was going to be time barred on 31/12/2016.Under these facts and circumstances and in substantial interest of justice,we restore the matter back to the 5 ITA 376/JP/2018_ Navyug Infraprojects P. Ltd. Vs DCIT file of the A.O. for making reference to the DVO for arriving at the fair market value and for deciding the issue afresh as per the law.

In the result, the appeal of the assessee is allowed for statistical purposes only. Order pronounced in the open court on 04th June, 2019.