TaxTMI 
TaxTMI 
2023 (9) TMI 1204
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.... CIT(A) is bad in law and not in consonance with the facts of the case. 2. On the facts and 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 ....
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....t value mentioned in sale deeds as deemed income taking shelter of Section 43CA of the Act. The Assessee challenged the very applicability of 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 no....
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....ma Krishna Farm (Hemlata) 16,31,225 04 Rama Bankey Bihar Upvan 6,24,316 05 Total 45,78,589 Thus in view of the aforesaid analysis, the addition amounting to Rs. 3,66,41,140/- 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 ....
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....re clear and unambiguous no laws of interpretation or intention have to be referred to. This argument/consideration/ fact was not before the Hon'ble ITAT. Accordingly, the plea of the appellant with regard to addition of Rs. 16,31,225/-, 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 ....
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.... of allotment and fixation of sale consideration, the provisions of Section 43CA was not in existence and could not be visualized by the assessee. It was thus submitted that the CIT(A) has rightly endorsed the legitimate action of the Assessee and applied the law 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....
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....9 22 actually an agreement where the sale consideration is already fixed at the time of allotment in the light of judgment of the Hon'ble Supreme Court in the case of DLF Universal Ltd. vs. Appropriate Authority & anrs. 243 ITR 730(SC); R. N. Sons (P) Ltd. vs. Appropriate 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 ar....
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....n carried out in cash in the earlier year taking shelter of sub-section (4) of Section 43CA of the Act. The action of the CIT(A) is squarely opposed to the decision of the co-ordinate bench in Indexone (supra). We see no justifiable reason to deny the benefit of agreement value instead 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....
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.... 40758 171000 1/2 08.09.14 3900 418.00 1631000 03.05.12 12.03.12 350 146300 515000 2/1 11.08.14 4950 83.61 414000 20.04.12 02.03,12 3300 275913 224000 2/2 30.07.14 4500 160.5 723000 02.06.12 10.03.12 3000 481500 403200 2/3 02.05.14 4500 83.61 377000 20.04.12 06.03.12 3000 250830 210000 2/4 26.05.14 4500 169.08 761000 20.05.12 10.03.12 3000 507240 424200 2/5 22.04.14 4500 83.61 377000 12.05.12 28.02.12 3000 250830 219000 2/6 02.05.14 4500 83.61 377000 20.04.12 06.03.12 3000 250830 228000 2/7 19.08.14 4950 501.69 2484000 20.09.13 05.02.12 4950 2483366 1323000 2/8 30.07.14 5000 83.61 419000 20.04.12 16.03.12 3000 250830 219000 2/9 07.01.15 5500 83.61 460000 20.04.12 01.03.12 3300 275913 229950 2/10 16.07.14 4500 83.61 377000 10.05.12 06.03.12 3000 250830 229950 2/11 15.04.14 4500 83.61 377000 11.06.12 27.02.12 3000 250830 239400 2/12 09.01.15 5000 83.61 419000 20.04.....
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....00 01.05.06 09.03.06 500 418050 450000 3/4 01.12.14 5000 836.1 4181000 20.06.06 10.03.06 500 418050 450000 3/5 28.07.14 4500 376.24 1694000 15.01.07 07.10.06 500 188120 337500 3/6 28.07.14 4500 376.24 1694000 05.07.07 10.04.07 500 188120 337500 3/7 28.07.14 4500 376.24 1694000 28.01.07 11.01.07 500 188120 337500 3/8 28.07.14 4500 376.24 1694000 18.06.07 29.01.07 500 188120 337500 3/9 28.07.14 4950 418.05 2070000 03.10.06 21.09.06 550 229928 250000 3/10 24.07.14 4500 418.05 1882000 25.09.07 08.12.06 500 209025 250000 4500 418.05 1882000 25.09.07 02.11.06 500 209025 250000 3/11 24.07.14 5000 83.61 419000 15.09.12 22.06.12 3900 326079 180000 08.01.15 4500 167.22 753000 10.11.12 27.07.10 3900 652158 320000 08.08.14 5000 83.61 419000 10.09.12 22.06.12 3900 326079 180000 08.01.15 4/3 250000 Document 3 SH. BAL KISHAN GUPTA A.Y. 2015-16 F.Y. 2014-15 Reference No. Sale Value Worked Amount worked Amount Received as ....
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....¤¨ दर सूची कारà¥à¤¯à¤¾à¤²à¤¯ उप निबंधक तहसील - छाता w जिला - मथà¥à¤°à¤¾ पà¥à¤°à¤à¤¾à¤µà¥€ दिनांक – 01.8.2010. 24-7-2०/२ तक Document 6 अतिविशिषà¥à¤Ÿ गà¥à¤°à¤¾à¤® कृषि दर लिंक गारà¥à¤¯, आवासीय गà¥à¤°à¤¾à¤®à¥€à¤£ आवाधी राषà¥à¤Ÿà¥à¤°à¥€à¤¯ राजा के गà¥à¤°à¤¾à¤® का नाम पà¥à¤°à¤¤à¤¿ हेकà¥à¤Ÿà¥‡à¤¯à¤° पà¥à¤°à¤¤à¤¿ हेकà¥à¤Ÿà¥‡à¤¯à¤° 28 फीट से कम चौ 20 फीट स....
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....याल XGPFVT दे मूलà¥à¤¯à¤¾à¤‚कन अपलोड विवरण निबंधक कारà¥à¤¯à¤¾à¤²à¤¯ सदर 12 नीति 2019 ã§ã™ Sata दूर-सà¥à¤§à¤¾/12/15.10२००४ कारà¥à¤¯à¤¾à¤²à¤¯ उप-निबनà¥à¤§à¤• मथà¥à¤°à¤¾-पà¥à¤°à¤¥à¤® कहाठकà¥à¤¯à¤¾ है? - अनà¥à¤•à¥à¤°à¤®à¤£à¤¿à¤•à¤¾ (INDEX) नाग उपनिबंधक के कà¥à¤·à¥‡à¤¤à¥à¤°à¤¾à¤§à¤¿à¤•à¤¾à¤° का दà¥à¤°à¥à¤—ीकरण सेगमेनà¥à¤Ÿ 1. सेकà¥à¤Ÿà¤° - A 2. सेकà¥à¤Ÿà¤° -B - 3. सेकà¥à¤Ÿà....
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....ot no. C-41A (area admeasuring 500 sq. yds) In Rama Krishna Farm (Vrindavan) by the assessee, against sale consideration of Rs. 2,50,000/- @ Rs. 500/- per sq. yard, the assessee had no choice but to execute the sale deed in respect of the plot no. C-41A (area admeasuring 500 sq. yds) in Rama Krishna Farm (Vrindavan) in favour of the said Hemlata, without asking for even a single penny, over & above the agreed sale consideration amounting to Rs. 2,50,000/-. Your honour will appreciate that the assessee was under a legal obligation to abide by the terms of the Agreement which was entered into in the year 2007. In view of the peculiar facts and circumstances of the case of the said Hemlata, your honour is requested to kindly do not draw any adverse inference in the light of sub section 4 of section 43CA. Document 9 That on the last date of hearing, your honour had asked also to explain as to why the figure of Rs. 29,47,364/-, representing the total amount of difference between the Circle Rate Value as on the date of agreement and the actual sale consideration received by the assessee, be not adopted for restricting addition made u/s 43CA. In....
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.... " 30 2:30 N jesh Modachbumas 012 14 100 25083 0.042 GLOL 1500 177,000 72/7 Kanish Kumar 424 SILE 20133600 20.OR.34 132100 Te Sanjay God G233 23032 30.07.34 300 411,000 231,00 DLA 330 2 0175 BA 1300 17191 1004 1500 460,000 221.910 ALM 20440 2/20 0173 Ba 250330 10052 18.07.34 4500 3770 30 13 201 Bhavendin ha C-166 13.61 1000 231062 CASA 23140 Yo 11430 טי פן Madhu Goyal C-220 13.4 300 25430 2004 23,000 CLA T 2213 L Via Seth C119 13.63 MAD 25.06.2 4500 233,000 DLIK 31830 34234 Untang C230 BL42 3,000 23830 05.07.12 ALB 5000 42,000 2000 BLOQ Yes 23 225 Mukash Chander Tul 650 16839 1,300 551317 02.06.12 047.38 4350 64,300 BRAK Te SED 32 Kumb Typ 15 500,240 DA 24.45.3 4500 761,000 433 23830 Vedant Seth C-LO 254,430 050642 1234 4500 377300 228,000 2200 Suman Lita Sharma C-12 BLA 250 110532 0.37.34 4500 377,300 224,000 ....