TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 1204
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....circumstances of the case the Ld. CIT(A) has erred by down scaling the addition of Rs. 3,66,41,140/-. 3. On the facts and circumstances of the case the Ld. CIT(A) has erred in giving the assessee the benefit of section 43CA(3) of the I.T. Act." 4. The Grounds of appeal raised by the assessee read as under: "1. That on the facts of the case and under the law, the Id CIT(A) had erred in sustaining the addition made by the Id Assessee u/s 43CA, to the extent of Rs. 23,23,048/- (as per the details tabulated in respect of Rama Swarn Garden). The Id. CIT(A) had failed to appreciate (a) that the agreements were entered into by & between the assessee and the buyers, much prior to the date of insertion of section 43CA in the I.T. Act 1961; and the assessee was not in a position to ask for monies, over & above the consideration as already agreed by & between the assessee and the buyers. 2. That on the facts of the case and under the law the Id CIT(A) had erred in sustaining the addition to the extent of Rs. 16,31,225/- (as per the details tabulated in respect of Rama Krishna Farm). The Id. CIT(A) had failed to appreciate (a) that the agreements were entered into by & between the....
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....S. 43CA where the agreement by way of allotment of plots were already reached with the prospective buyers much prior the insertion of S. 43CA in the Statute. 6.1 On facts, the assessee inter alia submitted documentary evidences towards allotment to several allotees in the earlier years, receipt of partial payments against agreed consideration in cash and in cheques, ITR, balance sheet, bank statement of the allottees etc. and broadly contended that when reckoned from the date of first payment and allotment letter determining agreement value, the circle rate of the later year would naturally show disparity due to time gap and circle rate would naturally exceed the actual sale considerations realized on sale of plots. 6.2 The CIT(A) called for the remand report on the evidences furnished by the assessee. Rejoinder of the assessee thereon was also taken note of and forms part of the first appellate order. The CIT(A) also analyzed the tabulated data placed before it towards allotment of plot to various parties under different schemes and noted that since the part payments for the plots have been received by the assessee over a period of several years against the allotment letters, th....
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....1,140/- gets down scale to Rs. 45,78,589 /-. Further the appellant has claimed set off of amounts by pleading "that the circle rate value as on the date of agreement, in few cases exceeds the actual sale consideration received by the assessee and in few cases is less than it is less than the circle rate value as on the date of agreement. The assessee has worked out the figures of such difference and has noticed that the resultant sum is Rs. 15,13,565/- (Rs. 29,47,364 - Rs. 14,33,799). Your honor is therefore requested to kindly hold that provisions of sub-section 3 of section 43CA applies to the case of the assessee and delete the addition of Rs. 3,66,41,140/- as made by the Id. A.O without prejudice, the addition of Rs. 3,66,41,140/- may kindly be restricted to Rs. 15,13,565/-." Even with regard to addition of Rs. 16,31,225/- as in the case of Hemlata, as referred to in para 8. 3 above, the appellant pleaded that the intention of law was to provide relief when booking/allotment/agreement was done in the prior year. As such, the condition of not having received cash should not be read into the provisions. To this effect, the appellant sought to rely upon order of Hon'b....
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....,225/-, is rejected. I note that based on my examination and analysis, the addition of Rs. 45,78,589/-, is to survive. The assessee however, has pleaded for a set off as detailed in the earlier paragraph, and after set off, according to the appellant, at best and without prejudice, even the addition of Rs. 29,47,364/- may get down scaled to Rs. 15,13,565/-. I am of the view that law does not provide for such a set off. Therefore, this plea of the appellant is to be rejected summarily. The appellant in his pleadings during the course of hearing explained that even as per the A.O. no amount of sale consideration has been received over and above the sale consideration. The appellant pleaded that there is no concealment whatsoever, and therefore, the income actually received and shown in the sale deeds is to be considered. I note that this is not a case where any concealment has been made or detected. I also note that the case here is not that of receipt of consideration over and above the sale deed consideration. However, the addition has been made on account of provisions of law contained in section 43CA(1) till 43CA(4) of the Income Tax Act, 1961. In this view of the matter al....
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....aw correctly in sync with judicial dicta while granting relief. 12. As regards the assessee appeal, the ld. counsel submitted that he does not seek to press all other grounds except ground no.2 concerning addition of Rs.16,31,225/- in respect of plot at Rama Krishna Farm allotted to Hemlata. The ld. counsel thus submitted that all other grounds may be treated as not pressed except ground no.2 of the assessee appeal. 13. As regards the additions under Section 43CA in respect of Hemlata, the ld. counsel submitted that de facto agreements were duly entered into by and between the assessee and Hemlata, i.e., the buyer and also other buyers on issuance of allotment letter much prior to the date of insertion of Section 43CA of the Act and therefore, the stamp duty rate / circle rate of the current year cannot be applied for the actual consideration agreed on allotment of plots in the earlier years. The payment in cash was not a bar at the time of allotment. The bar placed by Section 43CA coming into force subsequently could not be adopted for the purposes of disallowance. The ld. counsel thus submitted that while the CIT(A) has applied the principles of law correctly in respect of othe....
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....te Authority 330 ITR 455(Del.). The CIT(A) thus observed that the date of agreement of transfer (by way of allotment of plots) is different than the date of transfer during the AY 2015-16 in question and hence the stamp duty value as on the date of agreement by way of allotment letter is to be considered as full value of consideration and not the stamp duty value as on the date of transfer. Several decisions of co-ordinate bench of tribunal were referred to and relied upon. 15.2 The assessee points out that the CIT(A) has analyzed the provisions of Section 43CA of the Act in conjunction with the judicial precedents with reference to the purport of allotment letter / agreement with various allottees and found merit in the plea of the assessee towards non applicability of Section 43CA in the facts of the case where the obligation to handover the plots to various allottees at a pre-determined consideration already arose to the assessee prior to the insertion of S. 43CA in the statute. The CIT(A) thus agreed with the contention of the assessee for adoption of predetermined value for sale as the full value of consideration. The CIT(A) found that where the assessee committed for propose....
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....stead of circle rate in the case of Hemlata where the condition of receipt in cheque has been unjustly read into the provisions in contradiction to the judgment of the Co-ordinate Bench in Index One Trade Con P. Ltd. The transaction in cash occurred in AY 2007-08 when the provisions of Section 43CA was not at all existing in statute book. 17.2 Significantly, the assessee is in the business of real estate and has issued allotment letters for sale of plot to large number of parties and sold about 70 plots. Thus, the assessee has not entered into an isolated instance of allotment of plot with Hemlata alone. Large number of allottees shows the bona fide of the modus operandi of the assessee. When tested on the touchstone of preponderance of probabilities, the bona fide transaction and contractual commitment with Hemlata way back in FY 2006-07 cannot be doubted merely to invoke and apply a prospective law of S. 43CA. It was only initial payment of Rs.37,500/- which was received in cash from Hemlata. The booking amount in cash was received way back on 08.12.2006 for a plot in Rama Krishna Farm Vrindavan. The formal booking of plot was carried out on 22.07.2007 and allotment letter was a....