MANGALMURTI REALTORS,MUMBAI vs. ITO WD 5 PANVEL, MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

3. The appellant prays that - (a) Addition of Rs. 1,38,65.636/- be deleted: (b) disallowance of Rs. 5,54,863/- be deleted: (c) Any other relief, as may be deemed fit.

4. All the above grounds are independent and without prejudice to each other.” The brief facts of the case are that the assessee filed its return of 4. income on 28.09.2012 declaring total loss to the tune of Rs.1,47,36,691/- for the A.Y.2012-13. The case was selected for scrutiny under CASS. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee is an entity belonging to Triveni Group which is a reputed builder and has developed a project namely Bhoomi Towers at Kamothe. The saleable area of this project was 79847 sq. ft. The land cost was Rs.3,16,61,870/-. The project commenced on 26/06/2008 and was completed on 17.04.2012. The assessee adopted the project completion method to recognize the profit and disclosed the income for the first time during the year under consideration wherein the project was completed. During the year, the assessee has disclosed a ITA. No.3787/M/17 4400/M/2017 A.Y. 2012-13 sale of Rs.19,55,98,477/- on which the assessee has disclosed a net loss of Rs.1,47,36,855/-. The assessee was asked to furnish the detail of sale with the area of the flat/shops, sale consideration on the date of agreement and on the date of possession etc. On verification, huge rate difference was found. The assessee explained that the variation on account of sale of unfurnished flats and some flats were sold with extra amenities on higher price. Thereafter, on verification, some flats were sold with from low price and whereas some flats/shops were sold with very higher price. It was observed that the assessee has taken the cash against the new sales. The different was calculated and the variation was calculated of Rs.3,69,24,038/-.The 15% was allowed on account of the rate workout on account of market conditions, therefore, on money was calculated to the tune of Rs.3,13,85,432/- and added to the income of the assessee. Feeling aggrieved, the assessee has filed an appeal before the CIT(A) who partly allowed the claim of the assessee but the assessee was not satisfied, therefore, the assessee has filed the present appeal before us. ISSUE NO. 1:- 5. Under this issue the assessee has challenged the disallowance of Rs.1,38,65,636/- on account of difference in rate per sq.ft. charged to various customers vis-à-vis the market rates per sq.ft. on the date of booking by these customers. At the very outset, the Ld. Representative of the assessee has argued that the no addition can be ITA. No.3787/M/17 4400/M/2017 A.Y. 2012-13 raised on the basis of the surmises and conjectures. The variation of the rate has duly been explained to the AO but the AO did not verify the facts and works out the difference of rate in sum of Rs. 3,69,24,038/- wrongly and illegally and discounted @ 15% of the said amount and raised the addition to the tune of Rs.3,13,85,432/-, however, the CIT(A) has restricted the addition to the extent of 1,38,65,636/-. It is specifically argued that there is no plausible reason to raise the addition and the estimation is not justifiable and in this regard the Hon’ble ITAT has also passed the order in the case of Triveni Construction Vs. DCIT & Group concerns (ITA. No.3779/Mum/2017 & Others) (Mum) which is the group concern of the Assessee, therefore, finding is not justifiable. However, on the other hand, the Ld. Representative of the Department has strongly relied upon the order passed by the AO in question. On appraisal of the assessment order, the AO find the difference in the sale of flats/shops. The assessee has explained the number of reason on account of rate of difference such as market conditions, variation in the rate on account of sale of furnished flats and unfurnished flats and periodically gap and bargaining etc. The AO nowhere inquired the factual matter raised in the assessment. The AO assessed the average difference and raised the addition in sum of Rs.3,13,85,432/- after allowing the 15% discount. It can be said that the addition has been raised on estimation basis without any conducting inquiry. The matter of controversy has been adjudicated by the Hon’ble ITAT in the ITA. No.3787/M/17 4400/M/2017 A.Y. 2012-13 assesse’s own group case titled as Triveni Construction Vs. DCIT & Group concerns (ITA. No.3779/Mum/2017 & Others) (Mum). The relevant finding has been given in para no. 17 which is hereby reproduced as under.:-

“17. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below. In the instant case, the AO has proceeded to make an addition of Rs.8,76,70,801/- allegedly on account of on-money receipts without brining any cogent evidence/material on record. There is no evidence whatsoever with the AO to demonstrate that the assessee-firm received the differential amount of Rs.8,76,70,801/- in cash from the buyers of flats/shops. The AO noticed that flats/shops were sold to different customers at varying rates. The assessee explained to the AO that it had invited booking of the flats from February 2007 onwards and due to recession in the real estate market in the financial year 2008-09 and 2009-10, attractive and competitive rates were offered to various customers. The average selling price was at Rs.3,284/- per sq. ft.; however, the marginal difference in the rate per sq. ft. for certain flats M/s Triveni Constructions & Ors 4357/Mum/2017 and Ors was due to various factors such as discounts given to elite customers, better negotiations carried out by known customers, bargaining power of the customers, scenic view of the flat or its location, recession in real estate market, specific demand of the customers, instant requirement of funds prompting the assessee to sell flats at lower rates etc. The assessee-firm had started inviting booking at the end of February 2007 but it could not sell many flats initially for two to three years i.e. upto financial year 2009-10. Also in FY 2008-09, the assessee was facing acute shortage of funds. Accordingly, considering the overall situation, only three flats could be sold in the FY 2008-09. Therefore, the assessee- firm hiked the rates from Rs.2500/- per sq. ft. to Rs.3000/- per sq. ft. in the FY 2009-10, in order to cover the losses against the sale of flats in earlier years. The assessee-firm gradually increased the rate to Rs.3,500/- per sq. ft. in the FY 2010-11 by providing better amenities in the flats sold. It is found that the assessee firm could sell 33 flats out of proposed 101 flats in the FY 2009-10, though it had completed 51% of the project. Accordingly, flexible plans were brought in place to boost the sales in FY 2010-11 and increase the liquidity position of the assessee-firm. 17.1 In the case of Neelkamal Realtors and Erectors India (P.) Ltd. (supra), it is held that where assessee was engaged in business of selling of flats after construction and it offered an explanation for charging lower price in respect of some ITA. No.3787/M/17 4400/M/2017 A.Y. 2012-13 flats sold by it and the Assessing Officer, without controverting such explanation made addition to income of assessee by applying rate of another flat sold by it, Assessing Officer was not justified in his action. M/s Triveni Constructions & Ors 4357/Mum/2017 and Ors In M/s Runwal Projects Pvt. Ltd. (supra), it is held that addition made of on-money received from sale of flats cannot be quantified by applying average rate for all flats sold in the project without there being any evidence unearthed during search operations. Similar is the ratio laid down in Shri Rustam Soli Sethna (supra), M/s Shah Realtors (supra) and K.S. Constructions (supra). 17.2 In Krishna Enterprise (supra), following the decision of Honble Madras High Court in the case of Sugantha Ravindran 353 ITR 488, it is held that since transfer was made prior to the amendment of section 50C w.e.f. 01.10.2009, the provisions of section 50C would not be applicable. In M/s John Fowler (India) Pvt. Ltd. (supra), since the value of sale consideration reported by the assessee was less than the value as per the stamp duty authority, the difference between the two amounting to Rs.33,48,684/- was proposed to be added back to the income of the assessee. In the above case, as the difference between the valuation adopted by the stamp valuation authority and the one declared by the assessee was less than 10%, therefore, the Tribunal directed the AO to adopt the value as declared by the assessee. In Smt. Sita Bai Khetan (supra), it is held that the fair market value of the property is to be adopted on the basis of comparable sale instances. 17.3 We find that section 50C of the Act is applicable if the following conditions are satisfied: M/s Triveni Constructions & Ors ITA Nos. 3778/Mum/2017, 4357/Mum/2017 and Ors (1) There is a transfer of land or building or both. The asset may be long-term capital asset or short-term capital asset. It may be depreciable or non-depreciable asset. (2) The sale consideration is less than value adopted by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer. If the above conditions are satisfied, the value adopted by the stamp duty authority shall be taken as full value of consideration for the purpose of computation of capital gains. In the case of Inderlok Hotels (P.) Ltd. v. ITO (2009) 32 SOT 419 (Mum) and CIT v. Thiruvengadam Investments (P.) Ltd. (2010) 320 ITR 345 (Mad), it is held that section 50C is not applicable for calculating business income u/s 28. Thus section 50C is applicable if a capital asset (being land or building or both) is transferred for a consideration which is lesser than stamp duty value. In such case, value assessed (or assessable) by stamp duty authority shall be taken as full value of consideration for the purpose of computation of capital gain. The Finance Act, 2018 has inserted section 43CA w.e.f. assessment year 2014-15. It provides that where the consideration for the transfer of an ITA. No.3787/M/17 4400/M/2017 A.Y. 2012-13 asset (other than capital asset), being land or building or both, is less than stamp duty value, the value so adopted (or assessed or assessable) shall be deemed to be the full value of the consideration for the purpose of computing income under the head profits and gains of business or profession. M/s Triveni Constructions &Ors ITA Nos. 3778/Mum/2017, 4357/Mum/2017 and Ors In the instant case, the assessee is a developer and builder engaged in construction and developing commercial and residential complexes including malls. Section 43CA is applicable to the case of a developer or builder and thus applicable to the instant case. We are concerned herewith AY 2012-13. As mentioned earlier section 43CA is effective from AY 2014-15 and thus not applicable to the impugned assessment year.

ISSUE NO.2