TMI Blog1994 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... of the leasehold right in land and the building standing thereon in occupation of tenants ? (2) Whether, on the facts and in the circumstances of the case, and on the materials on record, the Tribunal was justified in law in holding that the consideration as shown in the sale deed for sale of the leasehold right in land and the building standing thereon in occupation of tenants was less by more than 15 per cent. of the fair market value of the said property on the date of transfer and was right in law in invoking the provisions of section 52(2) of the Act in the instant case ? " Facts. --- The reference relates to the assessment year 1971-72 and the assessee was assessed as an individual. On October 1, 1970, the assessee sold his prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figure than that actually received by the assessee, and the burden of proving such understatement or concealment was on the Revenue. The court further observed that the sub-section had no application in the case of an honest and, bona fide transaction where the consideration received by the assessee had been correctly declared or disclosed by him. This was reiterated by the Supreme Court in CIT v. Shivakami Co. Pvt. Ltd. 159 ITR 71. The effect of the decision of the Supreme Court is that the burden lies on the Revenue to prove that actual price of the asset received by the assessee was shown or declared, at a leser figure not that the asset was sold at an inadequate consideration. Sub-section (2) has no application in the case of an hone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rajasthan Mines [1970] 78 ITR 45 ; AIR 1970 SC 1560. This position is well-settled by many decisions of this court." In the present case, the Tribunal directed to fix the value of the property at Rs. 2,61,200 as already stated. On a perusal of the orders of the Tribunal, it appears that the Tribunal was dealing with the fair market value of the asset sold. The Tribunal also took into consideration the price rise while considering the fair market value. Fixing of fair market value is one thing and inadequacy of consideration is another. The capital gains tax is not a tax on what might have been received. The actual price received by the assessee may be less than the fair market value. There may be honest and bona fide transactions. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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