TaxTMI 
TaxTMI 
2024 (11) TMI 760
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.... on unsold stock of Rs. 1,12,55,228/-( Subject to Lettable Value). 3. On the facts and circumstances of the case in law, The Ld. CIT (A) has erred making addition on account of difference between agreement value and Value determined by D.V.O. ITA No. 396/MUM/2024 1. On the facts and circumstances of the case in law, The Ld. CIT (A) has erred in confirming deemed income on unsold stock as house property income. 2. On the facts and circumstances of the case in law, The Ld. CIT (A) has erred in confirming deemed income on unsold stock of Rs. 1,07,54,605/-( Subject to Lettable Value). 3. On the facts and circumstances of the case in law, The Ld. CIT (A) has erred making addition of Rs. 2,02,000/- on account of difference between agreement value and Value determined by D.V.O. 3. As the issues in both the appeals are common and pertaining to the same assessee, they were heard together and are disposed off by way of this common order for the sake of convenience and brevity. 4. We first take up appeal in ITA No. 395/Mum/2024 for Assessment Year 2016-17 which is taken as the lead case and the decision rendered therein shall apply mutatis mutandis for Assessment Year 2017-18. 5. ....
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....e so also the applicable law remains same in the present case before us and therefore these two grounds are squarely covered by the aforesaid decision of Co-ordinate Bench in assessee's own case. The issue has been elaborately dealt with by the Co-ordinate Bench taking into consideration decision of Hon'ble High Court of Bombay in the case of Classique Associate Ltd. (supra), Hon'ble High Court of Gujarat in the case of CIT vs. Neha Builders Pvt. Ltd. (2008) 296 ITR 661 (Guj) and distinguishing the decision of Hon'ble High Court of Delhi in the case of Ansal Housing Finance and Leasing Co. (supra) relied upon by the ld. Assessing Officer. Relevant observations and findings of the Coordinate Bench applicable in the present case are extracted below: "7. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record and judicial pronouncements relied upon by them. Admittedly, the assessee who is a developer of real estate had developed a property viz. project at Plot No. 16- 30-A, Vashi, under the name and style of Vashi Infotech Park. As is discernible from the orders of the lower autho....
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....ue it is, that income derived from the property would always be termed as "income" from the property, but if the property is used as 'stock-in- trade', then the said property would become or ' partake the character of the stock, and any income derived from the stock, would be 'income' from p the business, and not income from the property. If the business of the assessee is to construct the property and sell it or to construct and let out the same, then that would be the 'business' and the business stocks, which may include movable and immovable, would be taken to be "stock-in- trade", and any income derived from such stocks cannot be termed as 'income from property'. Even otherwise, it is to be seen that there was distinction between the 'income from business' and 'income from property' on one side, and 'any income from other sources'. The Tribunal, in our considered opinion, was absolutely unjustified in comparing the rental income with the dividend income on the Shares or interest income on the deposits. Even otherwise, this question was not raised before the subordinate Tribunals and, all of sudden, the Tribunal started....
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..... 2013-14 & 2014-15 Haware Infotech Ltd. Vs. ACIT, CC-4(2) also be relevant and pertinent to point out that the Tribunal while disposing off the appeal in the case of the "sister concern" of the assessee viz. ACIT Vs. Haware Construction Pvt. Ltd. [ITA No.3321/Mum/2018 & 3172/Mum/2016, dated 31.08.2018] had duly considered the judgment of the Hon'ble High Court of Delhi in CIT Vs. Ansal Housing Finance & Leasing Company Ltd. (2013) 354 ITR 180 (Del). 11. We thus in the backdrop of our aforesaid deliberations, respectfully following the aforesaid settled position of law, vacate the addition of Rs. 5,20,394/- (i.e net "ALV") made by the A.O towards deemed income from "house property", which thereafter was sustained by the CIT(A). The order of the CIT(A) is set aside in terms of our aforesaid observations. 12. The appeal of the assessee is allowed." 6. Considering the facts and circumstances of the case and the applicable law with no material change therein, and the decision of Co-ordinate Bench in assessee's own case, following the rule of consistency, we delete the addition of Rs. 1,12,55,228/- made by the ld. Assessing Officer for deemed income on unsold stock under the head '....
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....n 50C is pari materia with provisions to Section 43CA. According to the ld. Counsel, the tolerance band of 10% is applicable in the present case and therefore by applying the proviso to Section 43CA, no addition is warranted. 10. We have heard both the parties and perused the material on record. The difference between the actual consideration and the value arrived at by the ld. DVO of Rs. 2,02,000/- is less than 10% of the ld. DVO value which is an undisputed fact. Considering the long line of judicial precedents on this issue which includes: 1. [2022] 144 taxmann.com 168 (Pune Trib.) IN THE HAT Pune Bench 'B' Sai Bhargavanath Infra v. Assistant Commissioner of Income-tax 2. [2013] 30 taxmann.com 293 (Allahabad) High Court Of Allahabad Commissioner of Income-tax v. Dr. Indra Swaroop Bhatnaga 3. [2016] 76 taxmann.com 76 (Gujarat) High Court Of Gujarat Principal Commissioner of Income-tax-3 v. Ravjibhai Nagjibhai Thesia 11. We are in agreement with the submissions of the ld. Counsel that the issue is no longer res integra and has been dealt with by several Co-ordinate Benches. Ld. Counsel had referred to a recent decision of the Co-ordinate Bench of ITAT, Mumbai in th....
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....e amendment to provisions of section 43CA to that extent assessee should be given relief. 11. On the other hand, Ld.DR relied on the orders of the lower authorities. 12. Considered the rival submissions and material placed on record, we observe from the submissions made by the Ld. AR that assessee has sold various flats and the sale consideration declared by them and registered stamp duty are different having a difference between 5.37% to 28.7%. The same is disclosed in the chart at Page No. 7 of the Ld.CIT(A) order. Ld.AR made a submissions that the amendment made to section 43CA are ITA NO.1932/MUM/2022 (A.Y: 2014-15) M/s. Ravi Developments retrospective in nature and in this regard he relied on the decision of the Shri Harish H Gandhi v. ACIT (supra) for the sake of clarity it is reproduced below:- "3.3. ......... But we find that there is a proviso introduced by the Finance Act 2018 w.e.f. A.Y.2019-20 onwards and which was later amended by the Finance Act 2020 applicable from A.Y.2021-22, which states that if the difference between the stamp duty value and the reported sale consideration is not more than 10% then, the reported sale consideration shall have to be accepted ....