GAJANAN BUILDERS,MUMBAI vs. ITO 31(1)(5), MUMBAI

Grounds of appeal

The assessee is a firm engaged in the business of building and development of real estate properties. During the year under consideration, the appellant has sold a flat for Rs. 45,00,000/- whereas the stamp duty value adopted by the stamp duty authorities was Rs. 64,95,460/-. Finding that there is a difference of Rs. 19,95,640/-between the sale consideration and the stamp duty value adopted by the stamp duty authorities, the AO issued a show cause notice to the assessee in order to invoke section 43CA of the act In response, the assessee explained that because of sluggish markets and declining sales of immovable properties in market, this was one of the cases where the actual price was lower than the ready reckoner value, therefore the flat was sold at the aforesaid price on commercial basis The assessee further claimed before the AO that it was in need of finance and it would have incurred more on finance charges than the discount given to the customer if it had borrowed money from the market or bank Considering that the assessee has not contested the valuation of the property by the stamp duty authorities, the AO made an addition of Rs. 19,95,640/-to the business income of the assessee.

Upon assessee appeal learned CIT(A) upheld the addition by holding as under :- “The provision of section 43CA is a deeming provision. As per provisions of section 43CA, where the consideration received or accruing as a result of transfer of the asset, other than a capital asset, is less than the value adopted or assessed or assessable by any authority of state government for the purpose of payment of stamp duty in respect of such transfer the value so adopted or assessed or assessable for the purpose the stamp duty, is deemed to be full value of consideration for the purpose of computing profit and gains from transfer of such asset. However, the provisions of section (2) & (3) of section 50C of the act are applicable to such transfer, which provides that where the assessee claims before the AO that the value adopted or assessed by the stamp valuation authority exceeds the fair market value of the property as on date of transfer, the AO may refer the valuation of the capital asset to the valuation officer to ascertain the fair market value of such asset. The perusal of the assessment order shows that the appellant

Against the above order assessee is in appeal before us.

We have heard both the Counsel and perused the records. We find that the authorities below have principally taken the correct view of the matter on the facts of the present case. The provisions of section 43CA are deeming provision. However the provision of subsection 2 and subsection 3 of section 50 C are also applicable in as much as if the assessee contests the valuation the matter needs to be referred to the departmental valuation officer. In the present case learned CIT(A) held that assessee has not asked specifically for reference to the Departmental valuation officer. However we note that when assessee was contesting the valuation as per stamp valuation authority, it was incumbent upon the learned CIT(A) to accept that assessee is not satisfied with the valuation. Hence the matter needed to be referred to the departmental valuation officer. Hence in the interest of justice we remit the issue to the file of assessing officer. The assessing officer is directed to refer the valuation to the departmental valuation officer and thereafter decide the issue as per law.

In the result the appeal filed by the assessee stands allowed for statistical purposes. Order has been pronounced in the Court on 7.1.2020.