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5.5. The assessee submitted before the ld CITA that the provisions of section 43CA of the Act are applicable only from Asst Year 2014-15 and that the same could not be applied in any case in respect of units that were allotted to the parties prior to 31.3.2013. The assessee also pleaded that in any case that any addition on account of discrepancy should be made in the year of completion of project i.e Asst Year 2015-16 and not in the year of appeal i.e Asst Year 2014-15. The assessee before the ld CITA vide submission dated 3.8.2017 submitted additional evidences under Rule 46A of the Rules , the copy of letter from Town Planning and Valuation Department Mumbai Region (Valuation) , Mumbai, in English and Marathi language, and the ready reckoner rate for FYs 2011-12, 2012-13 and 2013-14. The assessee submitted that these documents are to be produced in the year of completion of project i.e Asst Year 2015-16 and hence the same were not furnished before the ld AO at the time of assessment proceedings. The ld CITA admitted these additional evidences under Rule 46A of the Rules in the appellate proceedings which is mentioned in page 10 of his order. The ld CITA on analyzing the provisions of section 43CA of the Act admitted the fact that the said provisions are applicable only from Asst Year 2014-15 onwards, but observed that in case, transfer of immovable property takes place without registration of sale deed but by way of execution of sale agreement / power of attorney or by way of transfer with the regulatory authority or in any other manner, provisions of section 43CA of the Act shall be applicable. The ld CITA observed that in the instant case, the sale agreements were registered during the year under appeal. Irrespective of M/s. Shree Laxmi Estate Pvt. Ltd., the fact that the assessee had received the advance and letter of allotment was issued to the purchaser, the provisions of section 43CA of the Act would apply as the transfer of ownership in the unit has taken place during the year under appeal. Accordingly, the ld CITA held that the provisions of section 43CA of the Act are applicable in the instant case. The ld CITA further observed that the assessee had pleaded that the agreement value is the correct market value as against the stamp duty value adopted by the ld AO. He observed that in case if the assessee disputes the stamp duty value, then the provisions of section 43CA of the Act provides the assessee to make a representation to the ld AO for referring the case of the Learned Valuation Officer for determining the fair market value of the properties. That option was not exercised by the assessee in the instant case. Hence he held that the action of the ld AO requires to be sustained . With regard to the other contention of the assessee that the difference, if any, would be added in the year of completion of project, the ld CITA observed that the provisions of section 43CA of the Act are applicable in case of transfer of ownership of property by any mode and that following project completion method is merely accounting and taxation aspect of the business of the assessee and does not hinder the 'transfer' of ownership to the buyer of the property in any of the years prior to the year of completion of project. With these observations, he upheld the action of the ld AO.

5.6. Aggrieved, the assessee is in appeal before us.

5.7. We have heard the rival submissions. We find that the ld AR at the outset argued that even if the provisions of section 43CA of the Act are to be made applicable to the facts of the instant case, then the difference in value cannot be treated as 'suppressed sale' in as much as the difference in value is to be brought to tax only pursuant to deeming fiction created M/s. Shree Laxmi Estate Pvt. Ltd., in the statute in terms of section 43CA of the Act. The deeming fiction is in respect of treating the stamp duty value value as full value of consideration for the purpose of computing the profits of the assessee in respect of real estate projects / development projects. Though we agree with this argument of the ld AR in principle, but , in our considered opinion, it does not in any way change the computation of total income of the assessee as ultimately the difference between the agreement value and the stamp duty value is to be brought to tax in terms of section 43CA of the Act. Hence we hold that the expression 'suppressed sales' used by the ld AO and upheld by the ld CITA is totally unwarranted as the addition is only made by applying the deeming fiction provided in section 43CA of the Act.

5.7.1. It is not in dispute that the assessee had not reported any sales from sale of units during the year under appeal in view of the fact that it is following project completion method and since the project was completed in Asst Year 2015-16, the assessee had reported the sale of units as its turnover in Asst Year 2015-16 by declaring the agreement value as the full value of consideration. It is not in dispute that the assessee had not sold any land or building or both in respect of any of the units during the year under appeal. We find that the assessee had only registered the agreement during the year under appeal, wherein, it is very clearly stated that the subject mentioned property (i.e the property proposed to be transferred by the assessee to the ultimate flat buyers) was still under construction and that the ultimate flat owners shall allow the assessee to enter upon the subject mentioned property premises to complete the construction of the flats as agreed upon in the said agreement which was subject matter of registration with the stamp duty authorities. In other words, the agreement that was registered with the stamp duty valuation authorities was only the 'property under M/s. Shree Laxmi Estate Pvt. Ltd., construction' and not the property per se. In these circumstances, whether the provisions of section 43CA of the Act could at all be applied is to be seen. We are conscious of the fact that the provisions of section 43CA of the Act are applicable only when there is transfer of land or building or both. In the instant case, neither of those had happened pursuant to registration of agreement with the stamp duty valuation authorities. In respect of allotment of offices made prior to 31.3.2013, we find from the documents enclosed in the paper book that the assessee and the prospective buyer of flats had specifically agreed that till such time the agreement of sale is executed and registered , no right is being created in favour of the flat buyer and that the allotment letter is just a confirmation of booking subject to the execution of the agreement which is to be drafted at a later point of time. The said allotment letter also specifies that the relevant office has been allotted to the flat buyer with rights reserved to assessee to amend the building plan as it may deem fit. Accordingly, the flat buyer is bound to accept unconditionally and confirm that any kind of increase or decrease in the area of the said office or shift in the position of the said office, if arises, due to amendment in the plan etc and in case of variation of the area, the value of the office shall be proportionately adjusted. All these documentary evidences clearly go to prove that the assessee had not completed the construction of the office during the relevant year. It could also be inferred that pursuant to registration of agreement with the stamp duty valuation authorities, a right is created in favour of the flat buyer. Hence what the assessee had transferred pursuant to registration of the agreement was only the rights in the flat/ office (which is under construction) and not the property per se. Hence it could be safely concluded that there was no transfer of any land or building or both by the assessee in favour of the flat buyers pursuant to registration of the agreement in the year under appeal. Hence we hold that the provisions of section 43CA of the Act cannot be M/s. Shree Laxmi Estate Pvt. Ltd., made applicable to the same. Reliance in this regard is placed on the following decisions of co-ordinate benches of tribunals :-

We find that the aforesaid decisions are directly applicable to the facts of the case before us. In view of our aforesaid observations in the facts and circumstances of the case, we hold that the provisions of section 43CA of the Act could not be made applicable to the issue in dispute before us. In view of this finding, the other arguments advanced by the ld AR with regard to the fact that the ld AO ought to have made reference to the ld Departmental Valuation Officer (DVO) in the light of provisions of section 43CA(2) of the Act which is analogous to provisions of section 50C(2) of the Act need not be gone into as it becomes academic in nature. Accordingly, the grounds raised by the assessee are allowed.