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2018 (7) TMI 50 - HC - Income TaxOmission of the 2nd proviso to Sec.43B as deemed to have retrospective effect - Held that:- It is squarely covered by the decision of the Hon'ble Supreme Court in Commissioner of Income Tax Vs. Alom Extrustions Ltd., reported in [2009 (11) TMI 27 - SUPREME COURT] in which the Hon'ble Supreme Court has held that omission of second proviso to s. 43B and the amendment of first proviso by Finance Act, 2003 bringing about uniformity in payment of tax, duty, cess and fee on one hand and contributions to employees welfare funds on the other are curative in nature and thus effective retrospectively w.e.f. 1st April, 1988 i.e., the date of insertion to first proviso. According question No.1 is answered holding that the omission of the second proviso to Section 43B is effective retrospecting w.e.f. 1st April, 1988. Liquidated damages paid by the assessee to the developer - Held that:- The liability has been quantified and the same has been recorded in the supplementary MOU, as noted by the Tribunal. That apart, the fact that the possession of the land in question was not handed over in terms agreed to MOU is evident from the order passed by CIT(A), which has admitted that the possession of the property was handed over sometime in the year 2001. That apart, this fact has also been noted by the Assessing Officer, while completing the assessment for the Assessment Year 2004-2005 Vide order dated 28.12.2006. We respectfully agree with the view of the High Court of Delhi in the case of Kaushalya Devi V. Commissioner of Income-tax [2018 (4) TMI 1137 - DELHI HIGH COURT]. We are required to accept the discretion exercised by the assessee, who has incurred the expenditure and if any inference is made by the Court without reference to the factual matrix or on subjective basis, it will lead to absurd results, which are not called for. Answer question No.3 against the Revenue and in favour of the Assessee. Fair market value for computing the market value on sale of land - capital gain computation - Held that:- Schedule A of the sale deed is in conformity with the submission made by the assessee and also the fact that demolition has not taken place during the relevant previous year, the vacant possession was handed over only during 2001. The Assessing Officer was directed to exclude the sale consideration relating to the building while computing the capital gain. As against this portion of the order where CIT(A) had directed the exclusion of sale consideration related to the building, while computing the capital gains, the assessee went on appeal before ITAT. No question arise much less the substantial question of law with regard to the fair market value for computing the market value on sale of land. - Decided against the Revenue and in favour of the Assessee.
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