BHUJPAL BROTHERS CONSTRUCTION COMPANY,PUNE vs. ITO WARD 3(5), PUNE

This Assessee’s appeal for Assessment Year 2015-16 is directed against the Commissioner of Income Tax(Appeals)-3, Pune’s order dated 04.11.2019 passed in case no.PN/CIT(A)-3ITO Wd. 3(5)/388/2018-19 in proceedings u/s.143(3) of the Income Tax Act, 1961 [in short “the Act”].

It transpires during the course of hearing with the able assistance coming from Revenue side that the assessee’s sole

Mr.S.P.Walimbe invited our attention to Assessing Officer’s detailed tabulation in page 2 of the assessment order indicating the impugned difference between the assessee’s actual consideration vis- à-vis SRO price thereto involving nine residential properties. He could hardly rebut the clinching fact that section 43CA(1) [first proviso] inserted by the Finance Act, 2018 w.e.f 01.04.2019 had introduced tolerance margin of 5%, as increased to 10% vide Finance Act, 2010 w.e.f 01.04.2021. And further that the assessee’s residential units sold at S.No.3 to 6 having index numbers 8489, 7126, 2900 and 30745 had witnessed difference between the foregoing twin rates as less than 10% only. Mr.Walimbe at this stage strongly contended that we are in A.Y. 2015-16 whereas the above stated twin tolerance margins came to be introduced it later.

We find no merit in the Revenue’s instant arguments as the legislature has introduced these pari-materia provision in section 43CA, section 50C and 56(2)(vii) of the Act applicable in case of the transfer of the specified asset on account of their “transfer” involving vendor and purchasers thereto ; as the case may be. The CBDT’s A.Y. 2015-16 Bhujbal Brothers Construction Company Vs. ITO (A) explanatory memorandum to Finance Bill, 2013 also reiterates the very factual proposition.

Faced with this situation, we quote Dharamshibhai Sonam Vs. ACIT [2016] 75 taxmann.com 141 (AhdP) and [2021] 123 taxmann.com 252 (Mum) to conclude that the forgoing twin margins of 5% and 10% are curative in nature having retrospective effect; under section 50C(1) as well as section 43CA(1) 1st proviso of the Act. We, thus adopt the said reasoning mutatis-mutandis and direct the Assessing Officer to first make reference to the DVO in light of section 43CA(2); held as mandatory in Sunil Kumar Aggarwal Vs. CIT [2015] 373 ITR 83 (Kolkata), to determine FMV of the corresponding assets and then make the impugned addition only in case the differential value between the actual sale price and FMV determined turns out it to be more than 10% only, as per law in consequential proceedings. Ordered accordingly.