TMI Blog2021 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d stamp value is less than 5%. Therefore in our considered whenever an amendment brought in statute by the legislature with view to erase the hardship caused to the assessee then such amendment should be given a retrospective effect without going into the fact whether the same is written specifically or not. In holding so we find support and guidance from the judgment of coordinate bench of this case Dharamshibhai Sonani [ 2016 (9) TMI 1259 - ITAT AHMEDABAD] where the issue was that whether the amendment brought in section 50C of the Act with regard to the point of time for taking stamp value vide Finance Act 2016 is retrospective in nature or not. The above amendment or proviso was inserted by the legislature with view to minimize the hardship caused to assessee due to deeming fiction.the amendment brought in section 50C by Finance Act 2018 is in retrospective in nature. Accordingly, the variation in the amount of consideration shown by the assessee is within permissible limit of the stamp value consideration. Therefore, no addition is required for the amount showing the difference between the actual consideration and stamp value. Accordingly we direct the AO to delete the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity. Thus in such circumstances the drawings shown by the assessee to the tune of ₹36,000 does not appear to be reasonable. We also find that the assessee has not produced any documentary evidence in support of his contention that there was the income in the hands of his wife and mother. Accordingly, in the absence of the necessary documents, it can be inferred that there was no income in the hands of his wife and mother as claimed by the assessee. Accordingly, it seems that the drawings shown by the assessee should certainly be more than the sum of ₹ 36,000 as shown by the assessee. Estimate the drawings the assessee - HELD THAT:- There is no standard jacket formula to work out the drawings of the assessee based on the documentary evidence in the given facts and circumstances.Some element of guesswork is required to work out drawings of the assessee. Accordingly, we hold that the drawings to the tune of ₹15,000 per month for the household expenses are sufficient and reasonable in the light of the above stated facts and discussion. Thus, the total drawings works out at ₹1,80,000 and the assessee has already shown a sum of ₹36,000 towards the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO invoked the provision of section 50C of the Act and worked out the difference in consideration declared viz-a-viz stamped value at ₹ 2,14,285/- only which was treated as the income of the assessee. The AO accordingly made the addition of ₹ 1,07,142/- being the 50% share belonging to the assessee to the total income of the assessee. 4.1 The assessee carried the matter to the appellate authority i.e. learned CIT (A). 4.2 The assessee before the learned CIT(A) submitted that at the time of agreement to sale the Jantari Value of the land was at ₹ 2,43,93,600/- @ ₹ 8800/- per sq mtr. which is much lower than the actual consideration. 5. However the learned CIT (A) confirmed the addition made by the AO by observing as under: Section 50C provides that if the value stated in the instrument of transfer is less than the valuation adopted, assessed or assessable by the stamp duty authorities, the valuation as adopted, assessed or assessable by the stamp duty authorities will be considered for the purpose of computation of capital gains arising on transfer of land or building or both. In view of the same and the facts of the case, the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Act then such value should be taken as consideration for purpose of computing capital gain on such transfer. 9.3 However this deeming fiction was creating hardship to the assessee where there were marginal variation between stamp value and actual consideration due to genuine reason. Therefore the legislator inserted new proviso to section 50C(1) of the Act which provided exemption from the levy of this section when difference between actual consideration and stamp value is less than 5%. The proviso and memorandum explaining the provision reads as under: Provided also that where the value adopted or assessed or assessable by the stamp valuation authority 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 section 48, be deemed to be the full value of the consideration. Memorandum At present, while taxing income from capital gains (section 50C), business profits (section 43CA) and other sources (section 56) arising out of transactions in immovable property, the sale consideration or stamp duty value, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the taxpayers, should be treated as retrospective in effect. Quite clearly therefore, even when the statute does not specifically state so, such amendments, can only be treated as retrospective and effective from the date related statutory provisions was introduced. Viewed thus, the proviso to section 50C should also be treated as curative in nature and with retrospective effect from 1-4-2003, i.e. the date effective from which section 50C was introduced. [Para 8] 9.5 We also find support and guidance from the judgment of Hon ble Agra ITAT Rajiv Kumar Agarwal v. ACIT [IT Appeal No. 337 (Agra) of 2013] which was followed by the Hon ble Delhi High court in case of CIT vs. Ansal Land Mark Township (P) Ltd. reported in 377 ITR 635 where the Hon ble bench of ITAT Agra held as under: 'On a conceptual note, primary justification for such a disallowance is that such a denial of deduction is to compensate for the loss of revenue by corresponding income not being taken into account in computation of taxable income in the hands of the recipients of the payments. Such a policy motivated deduction restrictions should, therefore, not come into play when an assessee is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was introduced. In view of these discussions, as also for the detailed reasons set out earlier, we cannot subscribe to the view that it could have been an intended consequence to punish the assessees for non-deduction of tax at source by declining the deduction in respect of related payments, even when the corresponding income is duly brought to tax. That will be going much beyond the obvious intention of the section. Accordingly, we hold that the insertion of second proviso to Section 40(a)(ia) is declaratory and curative in nature and it has retrospective effect from 1st April, 2005, being the date from which sub clause (ia) of section 40(a) was inserted by the Finance (No. 2) Act, 2004.' 9.6 Now coming to case of the assessee, the learned AR for the assessee before us contended that the variation between the sales consideration and stamp value was only of 0.78% which is within the limit of relaxation provided vide 3rd proviso to section 50C of the Act though inserted by Finance Act 2018. This contention of the assessee not in dispute. Thus considering the above discussion, we hold that the amendment brought in section 50C by Finance Act 2018 is in retrospectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- and stamp duty of ₹ 15,000/- along with other expenses against purchase of land. 12.3 The assessee further claimed that the above facts can be substantiated from the bank statement, books of accounts and sale and purchase agreement of property which were filed before the AO during the assessment proceedings. 13. However the learned CIT (A) confirmed the addition made by the AO by observing as under: I have carefully considered the facts of the case in the light of the submissions made by the appellant and the finding of the Assessing Officer recorded in the assessment order. During appellate proceedings, the appellant submitted that he had taken a loan for purchase of a Maruti Swift car which was subsequently sold by him while the loan was still outstanding. It was further submitted that the amount of ₹ 72,000/- credited to his bank account, was on account of repayment of this loan by the purchaser of the car in instalments of ₹ 9,000/- p.m, These claims however have not been supported by any documentary evidence during appellate proceedings. No details in respect of the loan, arrangement with the purchaser of the car, details of sale of car etc hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition, to our mind is warranted particularly in a situation where there is no finding of the authorities below suggesting that the amount withdrawn from the bank was utilized by the assessee for any other purpose. In the absence of such finding, an inference can be drawn that the amount withdrawn by the assessee from the bank was utilized for the purpose of subsequent deposit in the bank. However, we are inclined to direct the AO to verify whether the withdrawal from the bank was deposited in the bank subsequently. If that be so the addition is not warranted. Hence, the ground of appeal of the assessee is allowed. 18. The last issue raised by the assessee is that the learned CIT (A) erred in confirming the partial addition for ₹ 1,50,000/- on account of low withdrawal of household expenses. 19. The AO during the assessment proceeding required the assessee to furnish the detail of family members and household expenses. From the detail submitted the AO observed that the assessee family comprise of 5 members including 3 school going children. The AO further found that annual school fee of one children comes at ₹ 10,350/- only, aggregating to ₹ 31,050.00 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... child aggregating to ₹ 31,050.00. Furthermore, it has also been pointed out that the family of the assessee consist of 5 members in totality. Thus in such circumstances the drawings shown by the assessee to the tune of ₹36,000 does not appear to be reasonable. 24.1 Moving further, we also find that the assessee has not produced any documentary evidence in support of his contention that there was the income in the hands of his wife and mother. Accordingly, in the absence of the necessary documents, it can be inferred that there was no income in the hands of his wife and mother as claimed by the assessee. Accordingly, it seems that the drawings shown by the assessee should certainly be more than the sum of ₹ 36,000 as shown by the assessee. 24.2 The next question arises how to estimate the drawings the assessee. Indeed, there is no standard jacket formula to work out the drawings of the assessee based on the documentary evidence in the given facts and circumstances. Thus, we are of the view that some element of guesswork is required to work out drawings of the assessee. Accordingly, we hold that the drawings to the tune of ₹15,000 per month for the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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