TaxTMI 
TaxTMI 
2021 (8) TMI 270
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....e margin between the agreement value and stamp duty value is less than 5% and that the purpose of insertion of amendment is to avoid the undue hardships faced by the assessee. 4. In the recent amendment made by Honorable Finance Minister presented on 1st February, 2018 where in it was stated that "to minimise hardship in case of such transactions, it is now provided that where the stamp duty value does not exceed the consideration received or accruing by more than 5% of such consideration, the consideration received or accruing shall be deemed to be the full value of consideration." 5. In the given case the difference between the agreement value and stamp duty value is hardly 0.5%. 6. We request Your Honor to consider the sec 50C retrospectively. 3. Brief facts are that in the assessment proceedings it was noticed by the Assessing Officer that the assessee had sold an immovable property during the year and had purchased another immovable property and had claimed exemption u/s 54 of the Act. It was noted that the assessee was residing in flat No. 16B at S V Road, Santacruz (W), Mumbai, where tenancy rights were in dispute and suit was filed in the High ....
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....ase agreements and Index II. The Ld AR was asked to file any specific case law that covers the specific facts of its case regarding 56(vii)(b). No details or reply was furnished. It is noted that the appellant's case does not fall within section 56(vii)(b). The appellant also could not cite any specific decision in which the facts were identical to the case of the appellant. The appellant referred to section 50C, which is not the case here. In these facts, the Ground of Appeal is dismissed." 6. Against this the assessee is in appeal before us. 7. We have heard both the parties and perused the records. Learned Counsel of the assessee has summarized the submission as under :- "1. We would like to bring Your Honor's attention to the fact that assessee had filed her return of income on 26.12.2016. During the year under review the assessee had purchased a residential flat at Khar West on 01.10.2015 for a consideration of Rs. 9,00,00,000/- whereas the market value of the property was Rs. 9,04,55,000/-. 2. However, we would like to inform Your Honor that variation can occur in respect of similar properties in the same area because of variety of fac....
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.... the property in the adjoining areas was below the market value assessee had also registered the agreement at Rs. 9,00,00,000/- whereas the market value of the property was Rs. 9,04,55,000/-. Considering the hardships faced by the honest tax payers the Honorable Finance Minister recognized the same and amended the provisions of sec 50C of the Income Tax Act, 1961. Wherein the Honorable Finance Minister had agreed that the stringent provisions of sec 50C creates hardships to the honest tax payers. Thus, an amendment being curative in nature was introduced in the Finance Bill, 2018. Also, legislature has been compassionate enough to cure these shortcomings of provision, and thus obviate the unintended hardships, such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature. Hence, the insertion of third proviso to section 50C must be given retrospective effect from the point of time when the related legal provision was introduced, as this amendment is procedural one to compute the value of property. Same has been upheld in the Honorabl....
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....f the Honorable Coordinate Bench, we hereby direct the AO to adopt the value as declared by the assessee. Also, in case of Chandra Prakash Jhunjunwala Vs. DCIT, CC-3(4), Kolkata ITA No. 2351/Kol/2017 it was held that we hold that the insertion of third proviso to sec 50C of the Act is declaratory and curative in nature. That is, the third proviso to sec 50C of the Act relates to computation of value of property as explained by us above, hence it is not a substantive amendment, it is only a procedural amendment therefore the co ordinate Benches of ITAT used to ignore the variation up to 10%, therefore the said amendment should be retrospective. Quite clearly therefore, even when the statute does not specifically state so, such amendments, in the light of the detailed discussions above, can only be treated as retrospective and effective from the date related statutory provisions was introduced. Viewed thus, the third proviso to sec 50C should be treated as curative in nature and with retrospective effect from 1st April 2003, i.e. the sate effective from which section 50C was introduced. Further, sec 43CA of the Income Tax Act, 1961 state that Where the consideration....
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....h consideration : Provided that where the stamp duty value of immovable property as referred to in sub-clause (b) is disputed by the assessee on grounds mentioned in sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer, and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property. Thus, we request Your Honor to consider the direct nexus between sec 50C, 43CA and sec 56(vii)(b) of the Income Tax Act, 1961. We thus humbly request Your Honor to consider the amendment in sec 50C of the income tax Act, 1961 to be curative in nature and thus, to have a retrospective effect. Further, request Your Honor to disallow the addition made by the Assessing Officer of Rs. 4,55,000/-. There is a minimal difference of 0.51% between the Market Value and Agreement Value which is below the permissible limit as per sec 50C of the Income Tax Act, 1961." 8. Per contra learned Departmental Representative relied upon the orders of the authority below. 9. Upon careful consideration we note that the difference between val....