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039. The learned departmental representative supported the orders of the lower authorities and submitted that such tolerance bench should not be applied retrospectively. The learned departmental representative referred to the historical background of provisions of section 43CA of the act and submitted that earlier it did not apply to transfer of immovable property held as stock in trade and for curbing the use of unaccounted money by parties involving in transfer of immovable property where the stock in trade is sold the above provisions were included. He relied upon the decision of the honourable Bombay High Court in case of principal Commissioner of income tax versus Swanand properties private limited (2019) 111 taxmann.com 94, the decision of the honourable allowable High Court where retrospective operation of rule 6AA was held to be prospective in case of CIT versus Rajasthan Charm Kal Kendra (2005) 144 taxman 320 and decision of the coordinate bench in welfare properties private limited versus deputy Commissioner of income tax 180 ITD 591 wherein it Page | 37 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 has been held that prior to incorporation of proviso to section 43CA (1) with effect from 1/4/2019, there was not on rent Limited envisaged in section 43CA regarding difference between stamp duty value and actual sale consideration received by assessee on transfer of asset and therefore, the benefit of tolerance limit is not available to the assessee in view of these decisions.

Page | 39 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 However, in this decision, reliance was placed on another decision of Bombay Tribunal in the case of Maria Fernandes Cheryl v. ITO (International Taxation) [2021] 123 taxmann.com 252/187 ITD 738 (Mum) which relates to section 50C of the Act. It was contended that section 43CA and section 50C of the Act are pari materia provisions and therefore, holding of retrospective application of section 50C is even applicable making retrospective application to section 43CA of the Act as well. The ld. A.R was unable to place on record before us any direct decision where the first proviso of section 43CA which has been brought into effect from 1-4-2021 was held to be applicable retrospectively. In such scenario, we place reliance on the doctrine enshrined in the judgment of the full bench decision of Hon'ble Supreme Court in the case of CIT v. Vatika Township (P.) Ltd. [2014] 49 taxmann.com 249/227 Taxman 121/367 ITR 466. The fact in this case was that search and seizure u/s 132 was conducted on 10-2- 2001 pursuant to which the assessment order for the block period 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 Page | 40 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 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 v. Suresh N. Gupta [2008] 166 Taxman 313/297 ITR 322 also held that the proviso to section 113 is clarificatory and hence, should be read into block assessment scheme under Chapter XIV-B with retrospective effect. Similar view was reiterated by the Hon'ble Supreme Court in CIT v. Rajiv Bhatara [2009] 178 Taxman 285/310 ITR 105 by holding the proviso u/s 113 to be retrospective in nature. Then the Supreme Court was of the view that the issue ought to be referred to a larger Bench of Five Judges. In this decision, the Hon'ble Supreme Court has given fundamental doctrine of retrospective applicability of provision. It has been held that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication. The assessment creates a vested right on the assessee. The assessee cannot be subjected to re-assessment unless the provision to that effect is inserted by amendment either retrospectively or by necessary implications retrospectively. The Hon'ble Apex Court also opined Page | 41 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 that there cannot be any imposition of tax without the authority of law and such law has to be unambiguous and should prescribe liability to pay taxes in clear terms. This very principle is based on the doctrine, which means that if a particular provision of statute is not clear regarding imposition of tax or because of persons from whom the tax has to be collected, in such case the persons should not be fastened with any 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 N. Suresh Gupta (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.

5-6. The essence of the decision is that if any liability has to be fastened with the assessee tax- payer retrospectively then the statute and the provision must spell out specifically regarding such retrospective applicability. However, if the provision is beneficial for the assessee, in view of the welfare Page | 42 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 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%. Now the question of applicability of this proviso of section 43CA retrospectively covering the assessment year in question i.e. A.Y. 2015-16, from the spirit of Supreme Court decision in Vatika Township (P.) Ltd. (supra) case is analysed. Now, the intent of the legislature is to provide relief to the assessee in case such difference is less than 10% which has been brought into effect from 1-04-2021 thereby providing benefit to the assessee. This being the beneficial provision therefore will even have retrospective effect and would apply to the present assessment year 2015-16. At this juncture we would also refer to the decision of Pune Tribunal in Dinar Umeshkumar More v. ITO [IT Appeal No. 1503 (Pune) of 2015, dated 25-1-2019], where the said proposition of applicability of a beneficial provision was considered Page | 43 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 in light of Hon'ble Apex Court decision in the case of Vatika Township (P.) 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 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 retrospective effect". The net effect of this judgment is that if a fresh benefit is provided by the Parliament in an existing provision, then such an amendment should be given retrospective effect. Therefore, even without going into the merits of the case by the application of first proviso to section 43CA having retrospective effect, the grounds of appeal of the assessee stands allowed."

We have noted all facts and material brought before us with regard to the issue. We have also gone through the valuation reports submitted by the assessee. We Page | 95 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 have noted the legal provisions provided in sections 43CA and 50C(2)/ (3) of the Act. We note that section 43CA(2) of the Act provides for application of section 50(C)(2)/(3) of the Act in relation to 'determination of the value adopted/ assessed/assessable under section 43CA(1) of the Act. We note that section 50C(2)/(3) of the Act, provides that if the assessee claims before the assessing officer that the value adopted/ assessed/ assessable by the stamp valuation authority (SVA) exceeds FMV on the date of transfer and the value adopted/ assessed/ assessable by the SVA has not been disputed in any appeal/ revision/ reference before any other authority/ court/ the High Court, then the assessing officer 'may' refer the valuation to a 'valuation officer'. Thus we note that the sections provide an exception to the 'rule of stamp duty valuation adopted in section 43CA(1) of the Act. We note that the exception, so provided by virtue of application of section 50C(2) & (3) of the Act, has two preconditions as mentioned supra. The first condition is that the assessee should claim before the assessing officer that the value adopted/ assessed/ assessable by the stamp valuation authority Page | 96 ITA Nos. 2266 & 2239/Mum/2022 Macrotech Developers Ltd; A.Ys. 17-18 & 18-19 (SVA) exceeds FMV on the date of transfer, and the second condition is that the value adopted/ assessed/ assessable by the SVA has not been disputed in any appeal/ revision/ reference before any other authority/ court the High Court. We note that when these two conditions exist, then the assessing officer 'may' (in his discretion) refer the valuation to a 'valuation officer'. We note that in the instant case of the assessee, only first condition existed, where it had claimed that the stamp duty value exceeded the FMV.