1983 (11) TMI 134 - AT - Income Tax

Summary

Issues:
1. Validity of invoking section 143(2)(b) and computing capital gains by the ITO.
2. Quantification of capital gains.

Issue 1: Validity of invoking section 143(2)(b) and computing capital gains by the ITO:

In this case, the ITO invoked section 143(2)(b) to reassess the capital gains of the assessee for the assessment year 1978-79. The ITO reopened the assessment under section 143(2)(b) with the approval of the IAC, considering the sale of a property below fair market value. The assessee contended that the ITO's action was unwarranted based on the Supreme Court decision in K.P. Varghese v. ITO (1981) 131 ITR 597 (SC), which reversed the Kerala High Court decision. However, the Tribunal disagreed, stating that the ITO was within his rights to resort to section 143(2)(b) based on the prevailing legal position at that time.

Issue 2: Quantification of capital gains:

The ITO referred the matter to the Valuation Officer to determine the fair market value of the property, who estimated it at Rs. 1,76,756. The ITO calculated the capital gains by considering only the land's cost and not the incomplete structure. The AAC, following the Supreme Court decision in K.P. Varghese v. ITO (1981) 131 ITR 597 (SC), rejected the application of section 52(2) and adopted the sale consideration as shown in the document. The AAC disagreed with the Valuation Officer's valuation and computed the capital gains differently, considering the cost of the incomplete structure. The Tribunal upheld the AAC's decision, emphasizing that the cost of the incomplete structure should be considered, estimating it at Rs. 85,000. Accordingly, the capital gains were recalculated, resulting in a lower amount of Rs. 5,525.

In conclusion, the Tribunal partially allowed the appeal, modifying the assessment based on the recalculated capital gains.