TMI Blog2002 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, but the Tribunal has not given any decision on this issue. - In the interest of justice, the assessee will be at liberty to move a miscellaneous application regarding the issue that the consideration has not passed more than that shown in the sale deed. - - - - - Dated:- 1-2-2002 - Judge(s) : Y. R. MEENA., A. C. GOYAL. JUDGMENT On an application filed under section 256(1) of the Income-tax Act, 1961, the Tribunal has referred the following question for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal, Jaipur, was justified in holding that capital gains, in respect of sale of property, was not attracted in the assessment year under consideration as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal, the Tribunal has not considered the aspect of the proposition laid down by the Supreme Court in the case of K.P. Varghese v. ITO [1981] 131 ITR 597, and dismissed the appeal of the Department holding that in the absence of transfer of the property by registered deed, capital gain tax does not attract. Mr. Singhi placed reliance on the decision of the Supreme Court in the case of CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625 and submits that for capital gain tax registration is not necessary. Mr. Jain, learned counsel for the assessee, submits assuming that in the absence of registration of the deed, there can be capital gain tax, but even otherwise when the issue has been decided by the Commissioner of Income-tax (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the assessee, submits that when the issue regarding whether there was underhand dealing or the consideration was passed more than shown in the deed, the burden is on the Department and if the Department could not prove it, the issue has been decided in favour of the assessee. That has also been argued before the Tribunal, but the Tribunal has not given any decision on this issue. In the interest of justice, the assessee will be at liberty to move a miscellaneous application regarding the issue that the consideration has not passed more than that shown in the sale deed. The application before the Tribunal be filed within two months from the date of this order. The Tribunal is directed that if any miscellaneous application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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