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Income Tax Appellate Tribunal, BENCH ‘B’ KOLKATA
Before: Hon’ble Shri N.V.Vasudevan, JM & Shri M.Balaganesh, AM ]
ORDER PER N.V.VASUDEVAN, JM:
This is an appeal by the Revenue against the order dated 15.01.2013 of CIT(A) XII, Kolkata, relating to AY 2009-10.
The grounds of appeal
raised by the revenue reads as follows:
1. Whether the Ld. CIT(A)-XII, Kolkata was justified in holding the term assessable inserted in sec 50C by Finance Act (No.2) 2009, w.e.f. 01-10-2009 is to be adopted prospectively and not retrospectively as per the IT Act 1961? “
3. The Assessee is a company. The asessee e-filed return of income on 23.09.2009 showing a total income of Rs.57,43,640/-. During the relevant year, the assessee has shown profit on sale of office located at 104, S.P. Mukherjee Road, of Rs.5,17,489/- by deducting W.D.V. as on 31.03.2008 of Rs.73,82,511/- from the sale value of Rs.79,00,000/-. The Assessee entered into an agreement for sale of the property dated 14.1.2009. In the return of income filed for AY 2009-10 the Assessee declared capital gain on the basis of agreement for sale dated 14.1.2009 coupled with delivery of possession. In other words the Assessee construed the date of agreement as the date of transfer u/s.2(47)(iv) of the Income Tax Act, 1961 (Act). The registered -M/s. Lalita Steel Industries Pvt. Ltd. A.Y.2009-10 deed of conveyance was however executed only on 19.5.2009 (falling within AY 2010-11). The market value of the said property was assessed by the Addl. Registrar of Assurances-I, Kolkata for the purpose of stamp duty and registration at Rs.l,87,31,030/- as on 19.05.2009 (i.e., the date of registration). Later, the Ld. A.O. issued a letter dated 21.09.2011 addressing to Addl. Registrar of Assurances - I, Kolkata for assessing the market value of the property as on 14.01.2009 (i.e., the date of transfer). The Addl. Registrar of Assurances - I, Kolkata vide his letter dated 23.09.2011 has confirmed that the market value as on 14.01.2009 will be 8% less than the assessed value as on 19.05.2009.
Based on the letter of the Addl.Registrar of Assurances and keeping in mind the provisions of Sec.50C of the Act, the AO was of the view that the sale consideration of the property has to be substituted from Rs.79,00,000 as adopted by the Assessee in his computation of capital gain to Rs.l,72,32,S94/- (after deducting 8% of Rs.l,87,31,0301-) the value of the property as per valuation of Registrar of Assurances for the purpose of stamp duty and registration. The AO accordingly computed capital gain at a sum of Rs.98,50,083/- (Rs.l,72,32,S94/- - Rs.73,82,511/-) was computed by him to be profit/ STCG on transfer. Since Rs.5,17,489/- was already offered to taxation, balance sum of Rs.93,32,S94/- was added back to total income.
The stand of the Assessee was that the Ld. A. O. ignored the submission of the Assessee that the conveyance was not registered during the year in question and that the term "assessable" was inserted in sec. 50C w.e.f. 01.10.2009, therefore, the assessable value of the property in question cannot be considered as deemed consideration. Prior to such amendment it is only in a case where transfer is registered that the provisions of Sec.50C of the Act were attracted and when transfer is effected u/s.2(47) of the Act without registration provisions of Sec.50C of the Act were not applicable. The amendment referred to above was made with a view to remove the lacunae in the law but was applicable only prospectively. This was not considered by the AO. -M/s. Lalita Steel Industries Pvt. Ltd. A.Y.2009-10
On appeal by the assessee the CIT(A) deleted the addition made by AO by observing as follows :- “I have considered the finding of the AO. and the written submission and case laws filed and discussed by the AR. during the appellant proceeding I find that the agreement to sale in this case as completed on 06-01- 2009 because the possession of the office space as given on the simultaneously. Therefore, in my opinion keeping in vie the judgment of the Hon'ble Supreme Court in the case of Sedeo Forex International (supra) as well as the Bombay Tribunal Decision in the case of AClT Vs. Praveen Gandhi (supra). In this case the amended and inserted word " assessable" in Sec. 50C of the I.T.Act, 1961 which came into effect from 01-10-2009 is not applicable. Therefore, AO's action of making assessment on the basis of assessable value of the property in this case is not justified. Thus, assessee's appeal on ground no. 1 is allowed.”
Aggrieved by the order of CIT(A) revenue has preferred the present appeal before the Tribunal.
At the time of hearing the learned counsel for the assessee fairly submitted that the Hon’ble Çalcutta High Court in the case of M/s. Bagri Impex Pvt. Ltd. Vs ACIT 214 Taxman 305 (Cal) took a view that the amendment to the provision of Section 50C of the Act by the Finance Act 2009 w.e.f. 1.10.2009 was applicable retrospectively. In view of the above ruling the decision of CIT(A) has to be reversed. However, it was brought to our notice as against the decision of Hon’ble Calcutta High Court the assessee has preferred a Stay Leave Application in SLP vide Civil No.17138/2013 in the Hon’ble Supreme Court by its order dated 10.05.2013 was pleased to stay in the implementation of the order of the Hon’ble Calcutta High Court. The limited request of the learned counsel for the assessee was that the matter may be remanded to the AO to decide in accordance with the ultimate outcome of the appeal pending before the Hon’ble Supreme Court. The learned DR relied on the order of AO.
We are of the view that it would be just and proper to set aside the order of CIT(A) on this issue and remand the same to the AO for consideration afresh in the light of the legal position as it may be emanated from the order of the Hon’ble Supreme court -M/s. Lalita Steel Industries Pvt. Ltd. A.Y.2009-10 in the pending appeal referred to above. The AO will afford opportunity of being heard to the assessee before deciding the issue afresh. For statistical purposes the appeal of the revenue is treated as allowed.
In the result the appeal of the revenue is allowed for statistical purposes. Order pronounced in the Court on 11.05.2016.
Sd/- Sd/- [M.Balaganesh ] [ N.V.Vasudevan ] Accountant Member Judicial Member Dated : 11.05.2016. [RG PS] Copy of the order forwarded to: 1.M/s. Lalita Steel Industries Pvt. Ltd., 227, AJC Bose Road, Kolkata-700020. 2. DCIT, Circle-10, Kolkata. 3. CIT(A)-XII, Kolkata 4. CIT-IV, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata. True Copy By order,