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TMI Blog2020 (12) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... the other assessee in the present batch of appeals, entered into a development agreement with M/s. V.S. Kolbhor & Associates for sale of land at Survey Nos. 676/677/679 at Talegaon Dabhade for a consideration of Rs. 93,25,000/-. The sale deed was registered on 03-08-3006, on which date the stamp value was Rs. 2,43,28,953/-. Considering the fact that the income escaped assessment on this score, the AO issued notice u/s.148 of the Income-tax Act, 1961 (hereinafter also called `the Act'). After entertaining and disposing of the assessee's objections separately against the initiation of reassessment, the AO came to hold in the assessment order that the actual date of transfer of the property was the date as per registered sale deed, viz. 03-08-2006, which fell in the previous year relevant to the assessment year under consideration. Invoking the provisions of section 50C of the Act, the AO added a sum of Rs. 75,01,976/- in the total income of the assessee, being one half share of additional capital gain. The assessee's contention that the transfer took place way back on 06-05-2000 on entering into contract and handing over the possession of the property to M/s V.S. Kolbhor & Associates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the first proviso to section 50C of the Act and hence, the stamp value, if at all, should be considered with reference to the date of agreement entered into on 06.05.2000 and not on the date of registration on 03-08-2006. This was countered by the ld. DR by arguing that the first proviso to section 50C was inserted by the Finance Act, 2006 w.e.f. 01-04- 2017 and hence, the same cannot apply to the assessment year 2007-08 under consideration. 5. We first take up the alternate argument raised by the ld. AR for consideration. Before embarking upon this issue, it would be apt to take note of the mandate of first proviso to section 50C(1) of the Act, which states that: `where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted ... by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer.' This proviso unequivocally states that if the date of agreement fixing the amount of consideration is different from the date of registration for the transfer of the capital asset taking place late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0C applies, by which the stamp value on date of registration - which is usually higher because of the same falling later in the point of time from the date of agreement - is required to be taken as a full value of consideration notwithstanding the fact that the deal got finalized in the past on receiving full or part of the consideration, thereby exposing the assessee to higher tax bill. 8. The Hon'ble Supreme Court in a Constitution Bench decision in CIT Vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 446 (SC) has extensively dealt with the prospective or retrospective application of the provisions by holding that a legislation is ordinarily presumed to be prospective unless contrary intention appears. It further went on to hold that: `where a benefit is conferred by legislation, the rule against a retrospective construction is different. If legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally and where to confer such benefit appears to have been the legislators object, then the presumption would be that such legislation, giving it a purposive construction, would warrant it to be given a retros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use from the definition of `transfer' for magnetizing section 45 of the Act. The ld. DR vehemently argued that the case is directly covered by clause (v) of section 2(47) of the Act. He did not invite our attention towards any other clause of section 2(47) getting triggered. As such, we will focus only on clause (v), which states that "transfer", in relation to a capital asset, includes:`(v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882).' As clause (v) is directly referring to section 53A of the Transfer of Property Act (TPA), the doctrine of incorporation will get attracted and have the effect of bodily lifting and reading such later provision in section 2(47)(v) of the Act. Section 53A of the TPA, as applicable on the date of agreement, namely, 06-05-2000, read as under: Rs. 53A. Part performance.-Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Property Act having the effect of constituting `transfer' on 06.05.2000 notwithstanding the fact that the contract though required to be registered was not registered at that time. It is vital to note that section 53A of the TPA underwent a change w.e.f. 24-09-2001 omitting the words "the contract though required to be registered, has not been registered, or". Simultaneous with this amendment, an alteration was also carried out to the Registration of Property Act, 1908 by inserting subsection (1A) to Section 17 dealing with documents of which registration is compulsory by providing that: `The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.'. The amendments carried out to section 53A of the TPA and Section 14 of the Registration Act, 1908, both with effect from 24- 09- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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