TMI Blog2022 (8) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... ial for the assessee, in view of the welfare legislation spirit imbibed in the Income-tax Act, such beneficial provision can be applied in a retrospective manner. In the case of the assessee before us for the preceding assessment year i.e. A.Y. 2014-15, the difference of the consideration received from transfer of asset and the value adopted for stamp duty valuation was apparently not less than 10% tolerance margin which has been brought into effect from 1-4-2021 in the first proviso to section 43CA and therefore, the Tribunal in its wisdom had restored the matter to the file of the A.O for fresh adjudication (supra). Before us, admittedly such difference of tolerance margin is less than 10%. Applicability of this proviso of section 43CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R PER PARTHA SARATHI CHAUDHURY, JM : This appeal preferred by the assessee emanates from the order of the ld. CIT(A)-4, Pune dated 09-07-2019 for A.Y. 2015-16 as per the grounds of appeal on record. 2. The brief facts in this case are that the assessee filed its return of income on 27-09-2015 declaring total income of Rs. 47,17,490/-. The assessee is a builder and developer. Assessment order was passed u/s 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) assessing total income at Rs. 66.76,365/-. In the assessment order, the A.O made an addition of Rs. 19,58,875/- u/s 43CA of the Act being the difference between sale value of the flats sold and the stamp duty value of the same. It was contended by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the file of the A.O for fresh adjudication . 4. We observe from plain reading of sec. 43CA that it provides in a case where consideration received or accruing as a result of the transfer by an assessee of an asset other than the capital asset being land or building is lesser than the value adopted or assessed by any Government authority for the purpose of payment of stamp duty then the difference will taxed as deemed income. At the same time, the proviso to this section states that if there is a difference of such value within 10% margin then there cannot be any addition on the pretext of deemed income and this 10% margin has been inserted by Finance Act, 2020 w.e.f. 1-4-2021. The assessment year under consideration before us is A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from 1-4-1989 to 10-2-2000 was passed on 28-02-2002 at a total undisclosed income of Rs. 85,00,000/-. The tax was charged as prescribed in section 113 of the Act. Subsequently, a proviso was inserted u/s 113 by the Finance Act, 2002 w.e.f. 01-06-2002 to provide for levy of surcharge at 10%. The A.O took the view that the said amendment was clarificatory in nature and he levied surcharge by passing rectification order u/s 154 of the Act. However, the Tribunal and the Hon‟ble High Court upheld the assessee‟s claim that the said amendment was prospective in nature and did not apply to block period falling before 01-06- 2002. However, the plea of the assessee was rejected by the Hon‟ble Supreme Court in CIT Vs. Suresh N. Gup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to pay tax. It was further observed that though the Chief Commissioner in their Conference suggested that there should be retrospective amendment to section 113 of the Act, the Legislature chose not to do so even though for other provisions in which the legislature in its wisdom felt the need to do so has brought in amendments made with retrospective effect. The CBDT circular No. 2002 dated 27-08-2002 also makes it clear that the amendment to section 113 is prospective. Consequently, the conclusion reached in Suresh Gupta (297 ITR 322) (supra) treating the proviso to section 113 of the Act as clarificatory and having retrospective effect was held to be incorrect and was over-ruled. 6. The essence of the decision is that if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2015-16. At this juncture we would also refer to the decision of Pune Tribunal in ITA No. 1503/PUN/2015 for A.Y. 2011-12 dated 25-1-2019 in the case of Shri Dinar Umeshkumar More Vs. ITO Ward 3(3) Malegaon, where the said proposition of applicability of a beneficial provision was considered in light of Hon‟ble Apex Court decision in the case of Vitika Township Pvt. Ltd. (supra). In the said Tribunal order, the Bench observed that if the legislature is going to confer a benefit then such an averment will have a retrospective effect. The Tribunal observed that while discussing this issue in para 33 of the said judgment, the Hon‟ble Apex Court held that We would also like to point out, for the sake of completeness, that where a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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