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"6. 1 have considered the submission of assesse as well as other facts and circumstances of the case. The assessee in his reply has itself accepted that the sale on which TDS was claimed was not offered as income during the year. Moreover his reply on the issue of violation of section 43CA is not accompanied with any supporting evidences. However, in view of the detailed facts and discussion in para 2 and 3 above, it is very clear that the assessment proceedings in this case have been completed without verifying the issues/condition to satisfy the applicability of section 43CA in the assessee's case, while finalizing the assessment proceedings u/s.143(3) of the Act. At the same time, the assessee was allowed of the TDS claim without verification of the fact as whether the amount on which TDS was deducted has been offered for income during the year. Thus, it is a clear case where the AO has failed to make due verification and inquiries which were required in facts and circumstances of the case in view of this, the provisions of the relevant provisions of Explanation 2(a) to Section 263 of the Act are squarely applicable in this case he same are reproduced as under for the sake of convenience."

13. In response to AO's said notice, the appellant vide letter e-filed on 23.11.2019 furnished full details with supporting material (refer PB page 48 to 83). The appellant explained that in respect of the five (5) agreements to sale of the D-Square project reported by the tax auditors in clause 17 of Form No. 3CD which was a completed project, the Occupancy Certificate (OC) whereof was received on 21.05.2014, the appellant in the return of income filed has made addition of Rs. 16639600/- u/s 43CA in respect of four (4) agreements the deal whereof were initiated, finalized & executed and the consideration was also realized in the relevant assessment year under consideration only (refer PB page 25, 68, 70 & 71). In respect of the fifth agreement to sale being unit no. 805 of the said D-Square project registered during the year, the appellant submitted that the said unit was allotted on 20.04.2010 against advance received through account payee cheque A.Y. 2017-18 Disha Construction and the same was allotted at the then prevailing market rate which was higher than the then prevailing ready reckoner rate and, therefore, no addition was required to be made u/s 43CA in respect of the said agreement. In respect of agreement to sale flat no. 601 & 701 of the under construction "Sat Anupa project" which was at the nascent stage the Commencement Certificate (CC) was received after the close of the year (i.e. 31.03.2017) and the agreements were in respect of additional area purchased by the members namely Jyotsna Mehta and Vinodrai Trivedi respectively of the said society in addition to the free area they were entitled to and that in such type of agreements the sub- registrar levies stamp duty on the construction cost of the free area and the cost of land, building and construction, cost of additional area purchased though the consideration amount as per the agreement is in respect of additional area purchased. The appellant also explained that the additional area was sold at a rate higher that the stamp duty value of the said additional area as evidenced from the ready reckoner rate. The AO verified & examined the details including the above details and on being satisfied passed the assessment order u/s 143(3) of the Act accepting the returned income.

15. Pursuant to the show cause notice of Ld. PCIT, the appellant replied vide letter dt. 22.02.2022 (refer PB page 93 to 97) and submitted regarding the applicability of sec.43CA firstly in respect of agreement to sale unit no. 205 in D-Square to Shri Kamal Mehta, that it was part of the agreement to sale wherein the difference between the stamp duty value and the agreement value has already been offered and assessed to tax (refer PB page 68 & 71). Secondly in respect of agreement to sale unit no. 805 in D-Square to Ms. Falguni Pathak, it was submitted that the same was allotted to the buyer in terms of allotment letter dt. 20.04.2010 against booking amount of Rs.10 lacs received on the said date through banking channel and as the allotment was made at the then prevailing market rate which was more than the stamp duty value prevailing on that date, sec. 43CA has no A.Y. 2017-18 Disha Construction applicability on the said transaction (refer PB page 74 to 79). And it was pointed out to Ld. PCIT that even otherwise, sec.43CA is not applicable since it has been brought in to the statute by the Finance Act, 2013 w.e.f. 01.04.2014, therefore, it has no applicability to the allotment made on 20.04.2010; and thirdly in respect of agreement to sale of unit No. 701 to Shri Vinodrai Trivedi it was brought to Ld. PCIT notice that it was in respect of the under-construction project Sat Anupa. And that the said agreement is in respect of sale of additional area to the said member of the society over and above the area to which he was entitled to. And that the Sub-registrar in respect of such type of agreement, levy stamp duty on the construction cost of the area given free of cost and the cost of land, building and construction cost of the additional area bought by the member while the consideration received as per the agreement to sale is only in respect of the additional area sold. Accordingly to Ld. AR of the assessee, though the agreement value of additional area sold is higher than the stamp duty value of additional area sold, because of the manner in which stamp duty is levied on such type of agreement, the same depicts that the stamp duty value is higher than the agreement value (PB page 69, 80 & 83) which is actually not the case. The appellant further submitted that in any event the Commencement Certificate (CC) of the said project was received on 18.04.2017 i.e. after the close of the year (PB page 57 to 58) and as none of the conditions for recognition of revenue was triggered, no revenue was recognizable in respect of the said A.Y. 2017-18 Disha Construction agreement to sale and so not offered to tax in this relevant assessment year.

18. From the discussion (supra), we note that the AO during the assessment proceeding has called for the details of the sale of flats and even in respect of the applicability of Section 43CA of the Act (refer question (index 2 of all flats 2 (OC & CC of all projects) & details of 43CA and in respect to page 46 & 47 notice u/s 142(1) of the Act dated 18.11.2019 wherein the AO has asked the assessee to explain about the addition offered u/s 43CA as well as regarding the auditors at point 17 of Form 3CD in respect of flats sold; and details of flats (index-2) as well as to furnish the occupation certificate (OC) and commencement (CC) of all projects. And pursuant to the same, the assessee had furnish all details which were filed on 23.11.2019 (refer page 48 - 83 PB) where in the aforesaid discussed in details (supra) regarding the aforesaid question were furnished by the assessee. Therefore, the action of AO on the issue raised by the Ld. PCIT is a plausible action and so, the jurisdiction u/s 263 of the Act was without jurisdiction. And coming to TDS claimed to the tune of Rs.1,29,850/-