TMI Blog2021 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... tated to be prospective, but it relates back to the date when the statutory provision of section 50C was made effective i.e. 01.04.2003. Even, the subsequent amendment to the aforesaid proviso by the Finance Act, 2020 enhancing tolerance band from 5% to 10% would be effective w.e.f. 01.04.2003. Similar view has been taken in the case of Amrapali Cinema Vs. ACIT (supra) following the decision rendered in the case of Maria Fernandes Cheryl [ 2021 (1) TMI 620 - ITAT MUMBAI] . We find merit in the submissions made by ld. AR - no hesitation in holding that in the instant case, since the difference between the sale consideration declared by the assessee and the stamp duty value is 5.8% (approx), the consideration declared by the assessee shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stamp duty value is merely 5.82%. The 3rd proviso to section 50C was inserted by the Finance Act, 2018 w.e.f. 01.04.2019 allows tolerance limit of 5%. The said tolerance limit was enhanced to 10% by the Finance Act, 2020 w.e.f. 01.04.2021. The Tribunal in the case of Maria Fernandes Cheryl Vs. ITO reported as 187 ITD 738 (Mum.Trib.) has held that 3rd proviso would operate retrospectively from the date on which section 50C was introduced to the Act i.e. 01.04.2003. The ld. AR pointed that similar view was taken by Delhi Tribunal in the case of Amrapali Cinema Vs. ACIT 127 taxmann.com 376. 4. On the other hand, the ld. Departmental Representative (DR) vehemently defended the impugned order and prayed for dismissing appeal of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he anti-avoidance provisions of Section 50C do not come into play. As we have noted earlier, the CBDT itself accepts that there could be various bonafide reasons explaining the small variations between the sale consideration of immovable property as disclosed by the assessee vis- -vis the stamp duty valuation for the said immovable property. Obviously, therefore, disturbing the actual sale consideration, for the purpose of computing capital gains, and adopting a notional figure, for that purpose, will not be justified in such cases. On a conceptual note, an estimation of market price is an estimation nevertheless, even if by a statutory authority like the stamp duty valuation authority, and such a valuation can never be elevated to the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the next question was what should be a fair tolerance band for variations in these values. As a responsive Government, which is truly the hallmark of the present Government, even though the initial tolerance band level was taken at 5%, in response to the representations by the stakeholders, this tolerance band, or safe harbour provision, was increased to 10%. There is no particular reason to justify any particular time frame for implementing this enhancement of tolerance band or safe harbour provision. The reasons assigned by the CBDT, i.e., the variation between stamp duty value and actual consideration received can occur in respect of similar properties in the same area because of a variety of factors, including the shape of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50C could be pressed into service, and thus remedied the law, there is no escape from holding that these amendments are effective with effect from the date on which the related provision, i.e., Section 50C, itself was introduced. These amendments are thus held to be retrospective in effect. In our considered view, therefore, the provisions of the third proviso to Section 50C (1), as they stand now, must be held to be effective with effect from 1st April 2003. We order accordingly. Learned Departmental Representative, however, does not give up. Learned Departmental Representative has suggested that we may mention in our order that relief is being provided as a special case and this decision may not be considered as a precedent . Nothing ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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