DINAR UMESHKUMAR MORE,,NASHIK vs. INCOME-TAX OFFICER,,

आदेश / ORDER PER R.S.SYAL, VP : This appeal by the assessee emanates from the order passed by the CIT(A) on 07-09-2015 in relation to the assessment year 2011-12.

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modified grounds, challenging the impugned order on certain

issues, which we will espouse for discussion and decision.

assessment order, is that the assessee along with his sister and wife

executed a Deed of Conveyance on 28-07-2010 with M/s. Jayesh

Builders, a partnership firm in respect of property admeasuring 429

sq. mtrs along with the building standing thereon, known as `Sai

Chhaya’ at village Villae Parle in Mumbai for a total monetary

consideration of Rs.51 lakh and 2 flats admeasuring 900 sq.ft. in

the new building to be constructed on the said plot. One of such

flats admeasuring 405 sq.ft. was to be given to Shri Uday Vasant

Shinde and his relative, the hitherto occupants and consenting

parties, while the second flat admeasuring 495 sq.ft. was to be

retained by the assessee and his sister. Market value of the

property transferred under the deed amounted to Rs.1,86,32,000/-

on which appropriate stamp duty was paid. On being called upon

to explain the reasons for not declaring capital gain arising out of

this transaction, the assessee submitted that the property was

originally acquired by Dr. Ramchandra Krishna More prior to the

year 1972. After his death, the property devolved to Smt. Usha

Umeshkumar More. After her death, the property devolved to the

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assessee and the members of his family. The assessee explained

that his mother Smt. Uma Umesh Kumar More sold the property to

M/s Jayesh Builders by a Registered Development Agreement

dated 31-05-2002 and handed over the possession to the said

builder by issuing a General Power of Attorney on 27-09-2002.

The builder demolished `Sai Chhaya’ for constructing a new

building. After the death of Smt. Uma Umesh Kumar More, the

assessee stated that he along with his sister completed the legal

procedure. Though the assessee initially took a stand before the

AO that `Sai Chhaya’ belonged to HUF, but, later on, it was

dropped and the assessee admitted that this property belonged to

him alone and not the HUF. The assessee also submitted that the

transfer of property took place on 31-05-2002 on execution of the

Registered Development Agreement and hence, the amount of

capital gain, if any, ought to have been charged to tax in the

previous year relevant to the A.Y. 2003-04 and not the year under

consideration. The AO rejected the above contentions by holding

that the amount of capital gain was chargeable to tax in the hands

of the assessee alone and not the HUF and further that the

agreement made on 31-05-2002 was only for development and not

outright sale, which event actually took place on 27-08-2010,

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when the Conveyance Deed was executed between the assessee,

the builder and others. In this backdrop of facts, the AO held that

the assessee actually transferred his flats in `Sai Chhaya’ on 27-08-

2010 when the ownership rights in the property got transferred.

That is how, he computed the long term capital gain at

Rs.1,74,39,625/- by taking full value of consideration as per stamp

valuation authorities at Rs.1,86,32,000/- and reducing it with the

indexed cost of acquisition at Rs.11,92,375/-. The assessee

remained unsuccessful before the ld. CIT(A) against which the

assessee has approached the Tribunal.

material on record. Certain facts which are not disputed are that

the Smt. Uma Umesh Kumar More, mother of the assessee,

entered into a development agreement with M/s. Jayesh Builders

on 31-05-2002 transferring development rights in `Sai Chhaya’, a

copy of which is available at page 17 onwards of the paper book.

As per Clause (VII) of this Agreement, she was occupying two

flats with total carper area of 898 sq.ft. on first floor of Sai Chhaya

building. Annexure No. 1 to the Agreement, a copy of which is

placed on page 28 of the paper book, shows two flats at Sl.No.5

with the narration “Owners occupied” having carpet area of 429.50

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sq.ft. and 469.43 sq.ft. total 898.48 sq.ft. As per this Development

Agreement, the developer agreed to discharge the monetary

consideration of Rs.30 lakh plus two flats in the proposed building

to be constructed on the same property having total carpet area

admeasuring approximately 900 sq.ft. In the meantime, one Shri

Vasanat Shivram Shinde filed a petition in the Hon’ble Court

contending that flat 5A situated at `Sai Chhaya’ of Villae Parle,

Mumbai was in his possession for last several years as the said

building was constructed by the deceased father of Smt. Usha

Shinde, wife of the petitioner. He claimed to be in possession of

such a flat and urged that the transfer of his flat by the assessee and

his family to M/s. Jayesh Builders was illegal and void. After

protracted litigation between Shri Shinde and family of the

assessee, eventually, a consent decree was passed by the Hon’ble

Bombay High Court in June 2010, a copy of which is available on

record. As per the said decree, the assessee agreed that one flat

admeasuring 405 sq.ft. carpet area be allotted to Shri Shinde, out

of two flats having total carpet area of approximately 900 sq.ft.

which were to be allotted to him in the new building. There was

some revision in the monetary consideration to be paid also from

the originally agreed amount of Rs.30 lakh in 2002 to Rs.51 lakh.

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After this consent decree, a registered conveyance deed dated

28-07-2010 was executed, a copy of which is available on record.

As per such conveyance deed, Shri Shinde was allotted a flat with

405sq.ft. carpet area and the assessee was also allotted one flat

with 495 sq.ft. carpet area and monetary consideration of Rs.51

lakh.

below was that the transfer of property took place on 31-05-2002

on the execution of the Development Agreement and hence, no

capital gain should be charged to tax in the year under

consideration. The authorities below repelled this contention.

Though a ground to this effect has been taken before the Tribunal,

but the ld. AR did not press the same and conceded that the

transfer should be considered on the execution of the Registered

Conveyance Deed on 28-07-2010, which is relevant to the

assessment year under consideration. The impugned order is, ergo,

upheld to this extent.

full value of consideration in computation of long term capital

gain. The AO adopted stamp value of the property on the date of

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execution of Registered Conveyance Deed, namely, 28-07-2010 as

full value of consideration. Contention of the assessee before us is

that the stamp value should be considered with reference to the

date on which the Development Agreement was signed and

possession of `Sai Chhaya’ was handed over to M/s Jayesh

Builders on 31-05-2002. To support such contention, the ld. AR

relied on first two provisos to section 50C of the Income-tax Act,

1961 (hereinafter also called `the Act’).

the head `Capital gains’. It provides that the income chargeable

under this head `shall be computed, by deducting from the full

value of the consideration received or accruing as a result of the

transfer of the capital asset’, the following amounts, namely, (i)

expenditure incurred wholly and exclusively in connection with

such transfer and (ii) cost of acquisition of the asset and cost of any

improvement thereto. Second proviso to this section states that

where long term capital gain arises in certain specified situations,

the words, ‘cost of acquisition’ and ‘cost of improvement’ used in

the main part of the provision would be substituted with the words

‘indexed cost of acquisition’ and ‘indexed cost of improvement’.

Section 50C is a special provision for full value of consideration in

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certain cases. For ready reference, we are reproducing sub-section

(1) of section 50C, as under : -

`Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer :

Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer:

Provided further that the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account, on or before the date of the agreement for transfer.’

emerges that ordinarily, full value of consideration of land or

building etc. is the amount actually received or accruing to the

assessee as a result of transfer. If however, such a consideration is

less than the stamp value of the land or building etc. on the date of

transfer, then the stamp value is deemed as the full value of

consideration. To put it simply, if actual sale consideration, for the

purpose of computation of capital gain u/s 48, is more than the

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stamp value, then capital gain should be computed by taking sale

consideration as full value of consideration. In case the amount of

sale consideration is less, the stamp value substitutes actual

consideration received or accruing. There is no dispute on such a

proposition.

provisos to section 50C(1), which have been inserted by the

Finance Act, 2016 w.e.f. 01-04-2017. Effect of the first proviso is

that when the date of agreement fixing the amount of consideration

and the date of actual registration for the transfer of capital asset

are not the same, the value adopted or assessed by stamp valuation

authority on the date of agreement may be taken for the purpose of

computing full value of consideration of such transfer. It can be

understood with a simple illustration. If the agreement for transfer

of property is executed, say, in year one and actual transfer takes

place, say in year three, then for the purpose of computation of

capital gain at the time of transfer in year three, full value of

consideration in terms of section 50C should be computed with

reference to the stamp value of the property on the date of

agreement in year one. This proviso has been enacted to rationalize

the provisions of section 50C in a case where agreement to sell the

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property is executed much before the actual date of transfer and the

sale consideration or its part is also received pursuant to such an

agreement. In such a situation, the stamp value of the property for

the purpose of computation of capital gain, should be considered

as is relevant on the date of agreement and not the date of

execution of registered sale deed. It is quite logical also. Once an

agreement is entered into between two parties for transferring a

particular property and certain amount is also received, the

transaction should be considered to have been locked on such a

date with reference to its market value prevailing on that date. If

the transfer by a registered sale deed is delayed for some reason

and it actually takes place in a later year and the stamp value on

such a later date is adopted, it would not reflect the true fair market

value of the property, which, for all practical purposes, was

actually agreed to be transferred on an earlier date of entering into

agreement to sell with reference to the prevailing market price on

that date.

proviso to section 50C(1) categorically provides that the first

proviso shall apply only when the amount of consideration or part

thereto was received through banking channel on or before the date

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of agreement for transfer . In order to circumvent a situation of the

parties to a transaction of transfer of land or building etc. trying to

draw an unwarranted advantage of the first proviso by falsely

showing an agreement to sell of a date anterior to the date of

execution of registered deed, which actually did not exist, the

Parliament simultaneously enacted the second proviso to ensure

that the benefit of the first proviso would percolate only in genuine

cases and not otherwise. It provided that the benefit of the first

proviso shall be available only if the amount of consideration or

part thereto was actually received by the assessee, through banking

channel, at the time of entering into agreement to sell.

2016 w.e.f. 01-04-2017. Memorandum explaining the provisions

of the Finance Bill, 2016, states in this regard as under :-

`Under the existing provisions contained in Section 50C, in case of transfer of a capital asset being land or building on both, the value adopted or assessed by the stamp valuation authority for the purpose of payment of stamp duty shall be taken as the full value of consideration for the purposes of computation of capital gains. The Income Tax Simplification Committee (Easwar Committee) has in its first report, pointed out that this provision does not provide any relief where the seller has entered into an agreement to sell the property much before the actual date of transfer of the immovable property and the sale consideration is fixed in such agreement, whereas similar provision exists in section 43CA of the Act i.e. when an immovable property is sold as a stock-in-trade. It is proposed to amend the provisions of section 50C so as to provide that where the date of the agreement fixing the amount of

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consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of computing the full value of consideration. It is further proposed to provide that this provision shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by way of an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account, on or before the date of the agreement for the transfer of such immovable property. These amendments are proposed to be made effective from the 1stday of April, 2017 and shall accordingly apply in relation to assessment year 2017-18 and subsequent years.’

Memorandum that for the purpose of computation of capital gain

in a situation where the agreement to sell was entered at an earlier

point of time vis-à-vis the registration of sale deed, a benefit in

terms of taking lower stamp value with reference to the earlier date

of agreement should be substituted in place of the higher stamp

value w.r.t. the later date of registration. Even the Memorandum

admits that section 50C, as such, did not provide any relief in

such a situation and the proviso has been inserted to provide such a

relief. This proviso has been inserted by the Finance Act, 2016

w.e.f. 01-04-2017. The Memorandum also provides that the

amendment shall be effective from 01-04-2017 and shall apply to

the assessment year 2017-18 and subsequent years. Now the

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question arises as to whether this proviso, conferring benefit in

specified cases, can still be treated as retrospective in nature?

legislation is presumed to be prospective unless there appears a

contrary intention. Similarly, a statute which impairs vested rights

acquired under existing law or which creates new obligations or

attaches a new disability, is also prospective. However, a

clarificatory amendment or a provision which supplies some

omission in an existing provision is declaratory and retrospective.

Similarly, a provision which is subsequently introduced for toning

down the rigor of an existing provision is also presumed to be

retrospective. To put it differently, if a new benefit is sought to be

conferred in relation to an existing provision, such an amendment

even though declared as prospective, assumes character of a

retrospective nature.

the background of facts in the CIT Vs. Vatika Township Pvt. Ltd.

(2014) 367 ITR 466 (SC), a Constitution Bench judgment of the

Hon’ble Supreme Court. Prior to insertion of section 153A,

dealing with assessment in case of a search or requisition w.e.f.

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01-06-2003, there was a special procedure for block assessment in

search cases, which was inserted by the Finance Act, 1995 w.e.f.

01-07-1995, through Chapter XIV-B with sections 158B to 158BI.

Section 113 deals with special tax rate in case of block assessment

of search case. This section provides that the total undisclosed

income of the block period, determined u/s.158BC, shall be

chargeable to tax @ 60%. This provision was also inserted along

with Chapter XIV-B w.e.f. 01-07-1995. Divergent views surfaced

on the question as to whether the rate of 60% is exclusive or

inclusive of surcharge. To settle the controversy, the Finance Act,

2002 inserted a proviso to the section, w.e.f. 01-06-2002,

providing that the tax chargeable under the section shall be

increased by surcharge, if any. After insertion of this proviso, again

a pandora box opened on the prospective or retrospective operation

of this proviso. The Hon’ble Supreme Court in CIT Vs. Suresh N.

Gupta (2008) 297 ITR 322 (SC) held that the proviso to section

113 is clarificatory and hence, should be read into block

assessment scheme under Chapter XIV-B from retrospective

effect. Similar view was reiterated by the Hon’ble Supreme Court

in CIT Vs. Rajiv Bhatara (2009) 310 ITR 105 (SC) by holding the

proviso u/s.113 to be retrospective in nature. Once again, this

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issue came up for consideration before the Hon’ble Supreme Court

in CIT Vs. Vatika Township (P) Ltd. (2009) 314 ITR 338 (SC).

Unable to concur with the earlier view holding such an amendment

to be retrospective, their Lordships referred the matter for

consideration by a Larger Bench. It was pursuant to such a

reference, that the Constitution Bench in Vatika Township Pvt. Ltd.

367 ITR 466 (SC) came to consider this issue. It has been laid

down in this decision that ordinarily legislation is presumed not to

be intended to have a retrospective operation as the law passed

today cannot apply to the events of the past. Their Lordships of

the Constitution bench further observed that a legislation which

imposes new obligation should be treated as prospective unless the

legislative intent is clearly to give the enactment a retrospective

effect. It was in this backdrop of the principles of statutory

interpretation that the Constitution Bench held proviso to section

113 as prospective. After holding so, their Lordships observed that

if the legislature is going to confer a benefit, then such an

amendment will have a retrospective effect. Discussing this issue

in para 33 of the judgment, the Hon’ble Apex Court held that :

“We would also like to point out, for the sake of completeness, that

where a benefit is conferred by legislation, the rule against a

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retrospective construction is different. If legislation confers a

benefit on some persons but without inflicting a corresponding

detriment on some other person or on the public generally and

where to confer such benefit appears to have been the legislators

object, then the presumption would be that such legislation, giving

it a purposive construction, would warrant it to be given a

retrospective effect’. The net effect of this judgment is that if a

fresh benefit is provided by the Parliament in an existing provision,

then such an amendment should be given retrospective effect.

50C(1), before amendment by the Finance Act, 2016, contemplated

the adoption of stamp value in respect of land or building or both

transferred by an assessee as full value of consideration with

reference to the date of transfer or the execution of sale deed. This

was without consideration of a situation in which agreement to sell

may have been entered into much prior to the date of registration

of sale deed. By this amendment carried out w.e.f. 01-04-2017 by

insertion of the above two provisos, the legislature has clarified

that in a situation where agreement to sell is entered into at a date

anterior to the date of registration of sale deed and certain

consideration is received at the time of entering into agreement to

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sell through a banking channel, the stamp value, for the purposes

of transfer, should be considered with reference to the date on

which the agreement to sell was entered and not a later date on

which registered sale deed is made. It is manifest that with

insertion of the proviso, the Parliament has toned down the

provision contained in sub-section (1) by which stamp value on the

date of registration of sale deed is considered as full value of

consideration notwithstanding the fact that the agreement to sell

was executed much earlier, in which sale consideration was

determined and a part of which was also received through banking

channel. When we consider the first proviso to section 50C in the

light of the ratio decidendi of the Constitution Bench judgment of

the Hon’ble Summit Court in Vatika Township (supra), it becomes

vivid that the proviso to section 50C(1) is retrospective. The

benefit which is sought to be conferred through this provision is

without inflicting detriment on some other person or on the public

generally. It further emerges that the idea behind this proviso is to

grant a benefit in the circumstances noted herein only. Going by

the observations of the Hon’ble Supreme Court in para 33 of

Vatika Township Pvt. Ltd. (supra), we have no hesitation in

holding that proviso to section 50C (1) is retrospective in nature

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and applies to the assessment year under consideration as well. It

is so for the reason that the relief given through this amendment is

to certain persons without inflicting a corresponding detriment on

some other person or on the public generally. Further, it is overt

from the Memorandum explaining the provisions of the Finance

Bill 2016 that the object of the amendment is also to confer such a

relief or benefit. Going by the ratio in the case of Vatika Township

(supra), we have no doubt whatsoever in our mind that the

insertion made through the above provisos w.e.f. 01-04-2017 is

retrospective and applies to the assessment year under

consideration also.

proviso would be allowed only if the condition as stipulated in

second proviso is satisfied. In other words, the stamp value on the

date of agreement to sell shall be considered as full value of

consideration only if the amount of consideration or part of such

consideration was received by the assessee through banking

channel on or before the date of agreement for transfer.

7.3.3. on page 11 of the impugned order that the assessee received

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a sum of Rs.11,000/- through cheque no. 99308 on 09-04-2001,

which is prior to the date of agreement to sell, that is, 31.5.2002.

This evidences that the assessee genuinely entered into an

agreement to sell with the Developer on 31-05-2002 and received a

sum of Rs.11,000/-, which constitutes receipt of a `part’ of

consideration before the date of agreement. Not only that, the

assessee received further sums of Rs.2 lakh on 23-10-2002; Rs. 5

lakh on 16-04-2003 and Rs.7 lakh before 11-01-2007. All these

receipts were through banking channel. A factual finding recorded

by the ld. CIT(A) in the impugned order to this extent has not been

controverted on behalf of the Revenue.

it emerges that the assessee entered into an agreement to sell on

31-05-2002; received part payments; and finally executed

registered conveyance deed on 28-07-2010. Having satisfied the

mandate of second proviso and further going by the first proviso to

section 50C(1), the stamp value for the purpose of computation of

capital gain at the time of sale in the year 2010 should be

considered with reference to the date of agreement, namely, 31-

05-2002. We order accordingly.

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Act are retrospectively applicable to the instant case, we need to go

back to section 48, which provides for starting the exercise of

computation of capital gain by taking the full value of

consideration received or accruing as a result of the transfer of the

capital asset. It has been noticed supra that only in a case where

the stamp value is more than the consideration received that the

process of substitution starts. Thus we need to have both the

figures of actual sale consideration and stamp value at hand.

Controversy in the extant appeal is also on the determination of the

sale consideration received by the assessee. Whereas, the case of

the assessee is that the sale consideration is one 495 sq.ft. flat in

the new building plus monetary consideration of Rs.51 lakh, the

Revenue has considered the value of two flats of 405 sq. ft. and

495 sq ft. plus Rs.51.00 lac as the full value of consideration. We

have seen the entire gamut of the factual panorama above, from

which it transpired that Shri Shinde was having some occupancy

rights in flat no. 5A of `Sai Chhaya’ and eventually his claim was

settled by allotting him a 405 sq. ft. flat in the new building. It is in

this light of the facts that we need to decide whether the assessee

transferred flat no. 5 and 5A in `Sai Chhaya’ or only flat no. 5.

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Whereas the assessee is contending that he transferred only one

flat, the Department has opined that he transferred both the flats.

and Sh, Shinde that the latter was having only occupancy right in

respect of flat no. 5A. The ownership right in it vested only in the

assessee. No material has been brought on record to establish the

ownership right of Sh, Shinde in flat no.5A. As such, it is held that

as the assessee was legal owner of both the flats, 5 and 5A, in `Sai

Chhaya’, it was he alone who transferred both the flats

admeasuring 898.48 sq.ft. area to the Developer. Thus the stamp

value as well as the actual sale consideration has to be worked out

accordingly.

assessee on account of the value of one flat of 405 sq.ft. to be

allotted to Sh. Shinde in the new developed building. The Hon’ble

Bombay High Court in CIT Vs. Abrar Alvi (2001) 247 ITR 312

(Bom.) has held that a payment for removal of encumbrances is

deductible u/s.48(1) as expenses incurred wholly and exclusively

in connection with transfer. Where this is not possible, without

discharge of liability, payment towards such liability should be

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considered as `in connection with transfer’, which expression is

wide than that of the `transfer’. Similar view has been taken by the

Hon’ble Madras High Court in CIT Vs. M/s. Bradford Trading

Company (P) Ltd. (2003) 261 ITR 222 (Madras) holding that the

amount paid for removing encumbrances and settlement of claim is

expenditure incurred in connection with transfer of a capital asset

deductible u/s.48(1) of the Act. In the light of the above, it is held

that the value of flat of 405 sq.ft. to be allotted in the new building

should be accordingly reduced from the full value of consideration

u/s 48(i).

remit the matter to the file of AO for computing the capital gain

afresh in line with our above observations and directions.

Order pronounced in the Open Court on 25th January, 2019.

Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 25th January, 2019 सतीश

ITA No.1503/PUN/2015 Dinar Umeshkumar More

आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश

िवभागीय �ितिनिध, आयकर अपीलीय 5. अिधकरण, पुणे “बी” / DR ‘B’, ITAT, Pune; 6. गाड� फाईल / Guard file. \ True copy //

आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार

/ True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

Date 1. Draft dictated on 23-01-2019 Sr.PS 2. Draft placed before author 25-01-2019 Sr.PS 3. Draft proposed & placed before the JM second member 4. Draft discussed/approved by Second JM Member. 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *