TaxTMI 
TaxTMI 
2023 (12) TMI 268
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....istrar office, the assessee had sold total 18 properties vide separate 18 registered sale deeds. The Assessing Officer noted that the assessee did not disclose the sale value of one property vide deed no. I- 0605055487/2014 registered on 21.07.2014 of the sale value of Rs. 12,05,200/-. The Assessing Officer further noted that the total stamp duty value of all the properties sold was at Rs. 4,96,06,660/-. The total sale consideration mentioned in the sale deed of 18 properties was Rs. 3,19,55,150/-. However, the assessee had shown in its books of account a total sale consideration received of Rs. 3,00,32,750/- only. The Assessing Officer tabulated the figures of the sale consideration, stamp duty value and the difference between the sale consideration and stamp duty value in respect of 18 properties as under: Sl. No. Deed No. Sale value/ consideration value Stamp duty value Difference 1 1-060503596/2014 Registered on 21.05.2014 27,36,300 29,96,900 2,60,600 2 1-060503610/2014 Registered on 21.05.2014 27,14,800 28,50,540 1,35,740 3 1-060503616/2014 Registered on 21.05.2014 14,70,000 16,17,000 1,47,000 4 1-060504999/2014....
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....he purpose of stamp duty and the actual sale consideration without taking into account the stamp valuation on the date of signing of the agreement in earlier years and even otherwise the addition was not called for. 3. For that even otherwise the consideration agreed as per the agreement of sale was fair and reasonable as on the date of agreement and therefore the value as may be taken by the Stamp Valuation Authority was not applicable. 4. For that the provisions of Sec. 43CA introduced from1.4.2014 were not applicable in the case of the assessee since all the agreements was entered into before the said date. 5. For that on the facts and circumstances of the case, the Ld. CIT(A) erred in confirming the addition made by A.O for Rs. 12,05,200/- when no sale consideration was received by the assessee or accrued to the assessee in respect of the transfer of the property." 4. Ground No. 1 is general in nature. 5. Ground Nos. 2 to 4: Assessee, vide these grounds, has contested the application of section 43CA of the Income Tax Act. We have heard the rival contentions and gone through the record. At the outset, the ld. counsel for the assessee has invited ....
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....egistration of such transfer of asset are not the same, the value referred to in sub-section (1) may be taken as the value assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer on the date of the agreement. (4) The provisions of sub-section (3) shall apply only in a case where the amount of consideration or a part thereof has been received by way of an account payee cheque or an account payee bank draft or by use of electronic clearing system through a bank account 85 [or through such other electronic mode as may be prescribed] on or before the date of agreement for transfer of the asset. [Explanation - For the purposes of this section, "residential unit" means an independent housing unit with separate facilities for living, cooking and sanitary requirement, distinctly separated from other residential units within the building, which is directly accessible from an outer door or through an interior door in a shared hallway and not by walking through the living space of another household.] 6. A perusal of the above provisions of section 43CA of the Act would reveal that the said section has been ins....
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....n the decision of Coordinate bench of the Tribunal in the case of Disha Construction vs. JCIT in ITA No.5538/Mu/2019 order dated 17.06.2021. The ld. AR has further submitted that even otherwise, the difference between the stamp duty value and the sale consideration in respect of properties mentioned at serial no. 1,3,4,7,9,10,11,12 was less than 10% and therefore, even otherwise no addition was warranted in view of the 1st Proviso to section 43CA(1) of the Act. The ld. AR has also relied upon the chart in respect of properties sold by the assessee and has further submitted that in fact the total properties sold were 19 properties and not 18 properties. However, two properties were sold by the land owners and not by the assessee. The assessee had sole only 17 properties. 9. The ld. DR, on the other hand, has relied upon the findings of the lower authorities. 10. We have considered the rival submissions and gone through the record. Before proceeding further, it will be appropriate to first reproduce the chart of sale of properties relied upon by ld. counsel for the assessee as under: SI. No. Name F/ No Area Sale value Avg Rate Dt of agmt Dt of booking ....
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..../7/2014 2,568,720 2310 567,120 60506014 15 Menoka Jewellery S- 1A 737 1,474,000 2,000.00 1/6/2013 29/4/2013 50,000 1/12/2014 4,643,100 6300 3,169,100 60508780 16 Menoka Jewellery S-5 669 1,204,200 1,800.00 1/6/2013 11/5/2013 50,000 1/12/2014 4,214,700 6300 3,010,500 60508781 17 Menoka Jewellery S-1 713 1,426,000 2,000.00 1/6/2013 29/4/2013 50,000 1/12/2014 4,491.900 6300 3,065,900 60508782 18 Menoka Jewellery S-6 686 1,234,800 1,800.00 1/6/2013 11/5/2013 50,000 1/12/2014 4,321,800 6300 3,087,000 60508783 19 Subrendu Bhowal 105 908 1,997,600 2,200.00 17/5/2013 7/5/2013 60,000 19/5/2014 - - (1,997,600) 60503612 Sale deed was executed by us but it has been escaped by ITO Total 1,081,000 49,607,160 19,574,410 11. We have also gone through the copies of the sale agreement placed at page 97 to 322 along with copy of ledger account of the sellers. A perusal ....
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.... upon the decision of the Bombay High Court in the case of PCIT vs. Swananda Properties (P) Ltd. [2019] 111 taxmann.com 94 (Bombay) dated 09.09.2019. The relevant part of the order of the Tribunal is reproduced as under: "5. We find that the assessee, along with its written submissions, have placed on record copy of development agreement dated 06/03/2011 entered in to by the assessee with the Society. As per Clause-12 of the agreement, the assessee has agreed to sell additional carpet area of 12350 square feet to 92 members of the society. The additional area was to be sold at Rs. 15000/- per square feet and the sale consideration was to be paid by the members in various trenches as specified in sub- clause (c) of Clause-12. Thus, quite clearly the additional area has been sold by the assessee pursuant to the development agreement which has been entered into by the assessee during financial year 2010-11 which is prior to introduction of Sec. 43CA. The provisions of Sec. 43CA has been inserted by the legislatures only with effect from 01^st April, 2014 and the same would not apply to any such agreements as entered into by the assessee in earlier years as held by Hon'ble....
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....;Capital gains' as is evident from specific reference in sub-section (1) of section 50 of the Act to section 48 of the Act i.e. mode of computation of capital gains. In fact section 50C of the Act as observed by the impugned order is placed as part of the Chapter IV-E under the head 'capital gains', it can only govern the valuation of the property to determine capital gains and cannot govern valuation of transfer of assets (other than a capital asset) i.e. stock in trade. This view is further strengthened by the fact that section 43CA has been introduced into the Act w.e.f. 1st April, 2014 which governs taking of full value of consideration for transfer of assets other than capital assets on the basis of stamp duty valuation. This section 43CA of the Act finds a place as a part of Chapter IV-D - Profits and gains of business or profession. Therefore, with effect from 1^st April 2014 the stamp duty valuation of assets sold could be taken as value of consideration. Our above view that section 50C of the Act has no application to value stock in trade is also a view taken by Allahabad High Court in Commissioner of Income Tax v. Ken Construction and Colonizers (P.) Ltd. (201....
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....rmative by holding that the contract between the parties will not bind the Revenue, while determining the fair market value of the assets of the partnership firm. In the present case, we are not dealing with the valuation of assets on dissolution of a firm. In case of dissolution, there is no sale as in the case of running business. Thus, the decision in the case of Associated Builders is in different facts and circumstances and would have no application to the present facts. 16. It is to be noted that the Revenue has not made any reference even remotely that the Respondent had received amounts in excess of that shown in the agreements in respect of twelve flats which is not being accepted. The entire case of the Revenue is merely on suspicion. It is not the case of the Revenue that the Respondent made secret profits out of sale of the twelve flats. 17. The Supreme Court has observed in the case of CIT v. A. Raman & Co. [1968] 67 ITR 11 that the law does not oblige a trader to make maximum profit, he can make, out of his trading activity. Income on which he can be taxed is only the income he has earned. So also recently, the Supreme Court in the case of S.A. Build....