TaxTMI 
TaxTMI 
2023 (4) TMI 1424
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....ficer rejected the above submission and observed that benefit of 5% is not applicable for the A.Y.2018-19 under consideration. Accordingly, he made the addition to the income of the assessee. 3. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and made detailed submissions before the Ld.CIT(A). "By Finance Act, 2018, the first proviso to Section 43CA(1) was inserted, and this proviso provided that "where the value adopted or assessed or assessable by the authority for the purpose of payment of stamp duty does not exceed one hundred and five per cent of the consideration received or accruing as a result of the transfer, the consideration so received or accruing as a result of the transfer shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration." This proviso was further amended by the Finance Act 2020, inasmuch as the tolerance band of 5% was increased to 10%. The net result of this amendment is that where the variation in actual sale consideration vis-à-vis the stamp duty valuation does not exceed 10%, the fiction of Section 43CA(1) will not come into play, and, therefore, profi....
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....t 4.88%, which is less then 5%. The finance act, 2018 permitted variation up to 5% and The Finance Act, 2020 permitted variation up to 10%. The price difference in our case is below 5%, which is within tolerable limit and hence additions made by the Id. AO need to be deleted. In support of his claim the appellant relies on the below mentioned covered judicial decisions Faber Construction v. ACIT 21(1) I.T.A. No. 198/Mum/2019 (Assessment Year 2015-16) ITAT Mumbai (Copy attached) Where the Hon'ble ITAT Mumbai bench observed and held that "The above proviso has been inserted by the Finance Act, 2018 with effect from 1/4/2019. A cardinal principle of interpretation is to look at the mischief, the act, the amendment, the proviso is aimed to remove or take care of in the present case I find that proviso was inserted to grant relief where there is only a 5% variation in the agreement value and stamp value. In such circumstances the proviso granted relief in as much as the difference of 5% is to be ignored and the deeming provision of section 43-CA shall not be invoked. I find that this proviso is aimed at mitigating the hardship or the mischief which was caused to the taxpayer on ....
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.... limit envisaged in section 43CA regarding difference between stamp duty value and actual sale consideration received by assessee on transfer of asset (other than a capital asset) Held, yes [Paras 8.9 and 10] [In favour of revenue]. As all the decisions cited by the appellant are on section 50C, and none on section 43CA, the judgement cited above is more relevant. Still, it may be argued that the provisions of the two sections are analogous, and these ratios have applicability here as well. Since there are differing decisions of the different benches of the same ITAT, on the issue, as to from which date the beneficial amendments to the statute would be applicable, it would be worth-while to see if the Hon'ble Supreme Court has laid down any law in this respect. This, I am afraid, has not been done in any of the decisions cited by the appellant, notably the John Fowler case and the Maria Fernandes case cited supra. In a recent decision, Hon'ble SUPREME COURT OF INDIA in the case of Krishna Gopal Tiwaryv.Union of India, [2021] 129 taxmann.com 168 (SC), held as under- Section 10(10) of the Income-tax Act. 1961 Gratuity (General) - Appellants were paid gratuity of Rs 10 lak....
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....nd not at the increased price which came into operation subsequently." 15. In another judgment reported as Orient Paper & Industries Ltd.v. State of Orissa 1991 Supp. (1) SCC 81, it was held that since the executive has been empowered to choose the date of commencement of the Act, such delegation cannot be said to be case of excessive delegation. The Court held as under. "29. Even if the section were to be seen as a delegation of power, it is a power conferred on the government to give full effect to the policy behind the legislation. It is with a view to achieving that purpose that the executive has been empowered to choose the time, place and forest produce for bringing the Act into operation having regard to the particular facts and circumstances in the contemplation of the legislature. There is no excessive delegation in such statutory grant of power. [See Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST [(1974) 4 SCC 98: 1974 SCC (Tax) 226 (1974) 2 SCR 879] Harishankar Bagla v. State of M.P. [(1955) 1 SCR 380, 388: AIR 1954 SC 465]]" 16. In a recent judgment reported as Himachal Road Transport Cor. v. Himachal Road Transport Corpn. Retired Employees Union [2021] 4 SCC 502,....
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....he case and in law, the CIT(A) ought to have considered that Finance Act 2018 has made amendment in section 43CA and as per amendment if there is difference of 5% between stamp duty value and agreement value than agreement value shall be deemed to be the full value of consideration and further, Finance Act, 2020 has made an amendment in section by raising the limit of 5% to 10%. b. On the facts and in the circumstances of the case and in law, the Ld. AO ought to have consider that the amendment made by the Finance Act, 2018 to section 43CA giving a 5% deviation being curative in nature be treated as having retrospective effect from 1-4-2003. 2) Without prejudice to the other grounds of appeal and on the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have referred the valuation of the flat by departmental valuation officer (DVO) u/s 50C(2). 3) The assessee craves Your Honour leave to add or alter or amend or delete any of the above grounds." 6. In spite of issue of notice none appeared on behalf of the assessee nor any adjournment was sought. Therefore, we proceed to dispose of this appeal with the assistance of Ld.DR. 7. Ld.DR explained the ....