TaxTMI 
TaxTMI 
2024 (3) TMI 533
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....to invoke s.263, two conditions must be fulfilled viz. the impugned assessment order must be erroneous and that error must be prejudicial to the interest of the revenue. In the present case, Id. AO has passed the reasoned assessment order after analyzing all details and therefore there was no error in the impugned assessment order so as to justify action u/s.263 of the Act. Under the circumstances, the very assumption of power u/s.263 of the Act is unjustified and bad in law and therefore, order u/s.263 of the Act deserves to be quashed. 3. The subject order u/s. 263 passed by Id. PCIT is illegal and bad in law in the absence of any finding of the Id. PCIT as to how the alleged error of the AO has resulted in loss of revenue particularly when share in common areas is not to be considered for the purposes of S.43CA r.w.s.50C of the Act. 4. The Id. PCIT has further erred in law in not coming to any concrete conclusion and without conducting any inquiry or investigating the issue, merely directed the AO to frame the assessment order afresh. Without there being any positive finding about order being erroneous and prejudicial to the interest of the revenue, the action ....
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....ail placed at paper book page No.215 and pointed out that the detail contained all information in relation to the properties sold with respect to: * Date of conveyance deed * Dastavej number * Name of purchasers * Sale consideration as per conveyance deed * Jantri value as per stamp duty authority * Stamp duty payable as per stamp duty authority * Stamp duty actually paid by the assessee * Whether sale consideration is lower than jantri value * Difference between sale consideration and jantri value He pointed out that the above detail was duly evidenced with Jantri value report of all 27 properties placed before us at P.B 216- 275. 6. Ld. Counsel for the assessee contended that with all facts placed before the Ld. PCIT duly evidenced with necessary documents, and the facts - clearly showing the sale consideration to be in excess of jantri value of the properties sold, there was clearly no error in the order of the AO having accepted the actual sale consideration and not substituting it with the jantri value in terms of section 43CA of the Act. 7. Next he pointed out that the Ld. PCIT found the....
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.... registered at Sr.no.2892 of 2014, the assessee has filed copy of valuation certificate showing stamp duty valuation of Rs. 58,53,300/- - and worked out the payable stamp duty of Rs. 2,86,812/-. The rate of Rs. 20,000/- per sq. mtr. has been applied for the total area of 299.86 sq. mtrs. with the notes that spot inspection had not been made and descriptive valuation has been estimated as per sale deed details. Thus, there is a difference in the area mentioned in the sale deed (total area 379.81 sq.meters (carpet area) + 176.00 sq. mtr. of common & undivided share ) totaling to 555.81 sq. mtrs. Thus, the stamp duty valuation authority has not considered the full area sold by the assessee. If the full area of 555.81 sq. mtr. is considered and the rate of Rs. 20,000/- is applied, then the corrct stamp duty valuation would be Rs.1,11,16,200/- on which the assessee would be liable to pay the stamp duty of Rs.5,44,694/-. 3.2 Further, the undersigned has visited the Jantrl Table for the area falling in T.P. Scheme No. 9 (Rajpur-Hirpur) which showed consolidated valuation in respect of entire T.P. scheme for residential as well as commercial area. The screen shot of this webpage h....
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.... with respect to the impugned property for having adopted wrong area of the property sold i.e. 299.86 sq.meters while the assessee had actually sold 555.81 sq.meters, which found mention in the sale deed also. 10. Ld.Counsel for the assessee pointed out that this finding of fallacy in the stamp duty valuation by the ld.Pr.CIT of the area sold by the assessee was not correct. He pointed out that it had been explained to the ld.Pr.CIT that the stamp duty valuation had been done on the entire property sold and 299.86 sq.meters related only to second floor and floor above the second floor for which stamp duty valuation was done separately, while for the ground floor and the cellar separate stamp duty valuation has been done. Copies of both valuation certificate had also been filed to the ld.Pr.CIT. In this regard, he drew our attention to the reply filed to the ld.Pr.CIT placed before us at PB Page No.110-201, more particularly, point no.7 of the reply, where the assessee had submitted complete details and evidence of the sale transaction in respect of Rajkumar Varadmal Budhani as under: "7. The Appellant Company has also provided all the facilities for easy movement of goo....
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....e deemed sale consideration as per the provisions of section 43CA of the Act. (2) The A.O. shall also make a separate reference to the Stamp Duty Authority so as to seek clarification for the calculation sheets filed by the assessee during the revisionary proceedings and obtain a fair opinion as to whether there was mistake crept in arriving at the valuation of Rs. 58,53,300/- for the area of 299.860 sq.mtrs. for the property sold through registered sale deed no.2892 and other sale deeds executed after ascertaining from the concerned authorities of the Stamp Duty Office having jurisdiction over the properties located in T.P. Scheme No.9 Rahoyr Hirpur). (3) After receiving such clarification from the Stamp Duty Office, the AO. shall decide the fair market value as per the provisions of section 43CA of the Act and for that purpose, all due opportunities shall be provided to the assessee before deciding the issue against it. (4) If the A.O. feels it necessary, he may make the reference to Valuation Cell for determining the fair market value of the entire project as it must have been completed by this time and all the units of Sharnam-4 must have been sold an....
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.... the ld.counsel for the assessee contended that there was no error as such error in the order of the AO, vis a vis applicability of the provisions of section 43CA of the Act and therefore, the order passed under section 263 of the Act was liable to be set aside. 17. The ld.DR, on the other hand supported the order of the ld.Pr.CIT. 18. We have heard contentions of both the parties, carefully gone through the order of the Ld.PCIT and also the various documents referred to before us. On a careful consideration of all the above we are in complete agreement with the Ld.Counsel for the assessee that the Ld.PCIT has failed to make out a case of any error in the order of the AO warranting exercise of revisionary powers u/s 263 of the Act. 19. The error noted by the ld.Pr.CIT in the assessment order is that the sale of properties by the assessee during the year was not examined by the AO vis-à-vis its stamp duty value for the purpose of invoking section 43CA of the Act, which requires the sale consideration to be substituted with the stamp duty value when the same exceeds the actual sale consideration. 20. We have noted that the ld.Pr.CIT has not pointed out any insta....
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...., we are in complete agreement with the ld.counsel for the assessee that in any case his finding of error vis a vis incorrect valuation by stamp duty authority is beyond the scope of powers of the Revenue authorities.This power to question stamp duty valuation by the AO u/s 43CA of the Act does not emanate from the same. We have gone through the provisions of section 43CA of the Act and find that the only authority given under the said section is to substitute actual consideration with the stamp duty valuation where the later exceeds the former, and there is no scope for questioning the stamp authorities valuation of the property. This is clearly evident from a bare perusal of the section, which for the sake of clarity, is reproduced hereunder: 43CA(1) Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gain....