TMI Blog1982 (7) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. 5. At the cost of repetition even, we reproduce, "in-verbatim", paragraphs 2 to 6 of the impugned order made by the CIT (A)-I,New Delhi: "2. The facts of the case as alleged by the Income-tax Officer are that property No. 55, Golf Links was transferred by the company to Smt. Bimla Devi, one of the Directors of the company, who is a person substantially interested in it, for a consideration of Rs. 2,36,000 on 7th May 1966, while the value of the property Rs. 5,80,858 as per Valuation Officer was as on 7th May 1966. IT is alleged that when the ITO came to know of this, proceedings u/s 147 were started and the difference between the market value as per gift-tax and as per the value at which it was transferred to the director amounted to Rs. 3,45,000 and this capital gain was taxable and had escaped income-tax. 3. The appellant contends that the addition was unjustified. It is contended that the fact regarding the transfer of property in question was not only disclosed at the time of original assessment but that these facts were considered, taken notice of and were mentioned in the assessment order itself. Secondly, that the notice of reopening assessment as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest to a very limited class of buyers. It is further stated that this sale was a forced sale to Smt. Bimla Devi and has she not agreed to the persistent persuasion of the directors to buy the property, the company would have lost the property to the Government without any compensation because the Company had purchased two properties which was forbidden under the rules and regulations of the Government. The property had not been transferred with the object of avoidance or reduction of the liability of the assessee u/s 45. The appellant has further contended that the property was subject to Rent Control Act and as such the valuation of the property has to be based on the basis of standard rent. It is also stated that in the valuation 1/2 of the unearned increase which was payable to the Government had not been considered. It is further contended that quantification of tax had not been done in the assessment order and as such it was vitiated in the light of judgment of Jammu Kashmir High Court in the case of S. Mubarik Shah Naqshbandi reported in 1977 CTR (J K) 180 : (1977) 110 ITR 217 (J K). 6. In my opinion, I need not go into the various aspects of the valuation, as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory best judgment assessment of the consideration actually received by the assessee and brings to tax capital gains on the footing that the fair market value of the capital assets represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him. The object of imposing the condition of a difference of 15 per cent, or more between the fair market value of the capital asset and the consideration declared in respect of the transfer, clearly, is to save the assessee from the rigour of sub-s (2) in marginal cases where the difference in subjective valuation by different individuals may result in an apparent disparity between the fair market value and the declared consideration. The word "declared in sub-s (2) of s. 52 is very eloquent and revealing. It clearly indicates that the focus of sub-s (2) is on the consideration actually received by him and it contemplates a case where the consideration received by the assessee in respect of the transaction is not truly declared or disclosed by him but is show at a different figure. The two Circulars of the Central Board issued onJuly 7, 1964, andJanuary 14, 1974, explaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at has been disclosed by the assessee already. More so there is no material on record to warrant the inference that the revenue has discharged the onus of establishing that the conditions of taxability are fulfilled vis-a-vis applicability of sub-s. (1) of s. 52 of the Act since the assessee has disclosed true consideration for the transfer and the transaction is honest, bona fide and truly state one. 9. As regards ground No. (ii) taken by the revenue in the present appeal, the facts of the assessee s case are squarely covered by the ratio of the decision of the Hon ble Delhi High Court atNew Delhi, in the case of Sham Narain Anr. vs. ITO (1981) 131 ITR 105 (Del). Their Lordships have held that where the assessee had dully disclosed all the material facts for assessment and had not disclosed anything which did not represent the true facts and there was no attempt to mislead the ITO, only on a change of opinion, the assessment could not be reopened. On identical facts, their Lordships of the Hon ble Delhi High Court quashed the notice issued by the revenue on the assessee u/s 147(a) of the Act. That apart, on the facts and in the circumstances of the assessee s case there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nde AIR 1976 SC 1204, which are to the following effect: "The State Government should not adopt a litigious approach and waste publish revenue on fruitless and futile litigation where there are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who cannot afford the large expenses involved in fighting a litigation in this Court. IT is, therefore, all the more necessary that State, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgement of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Government can and should avoid." 12. On our part we can only say that on the facts and in the circumstances of the assessee s case, all the facts necessary and material were with the ITO at the original assessment state, and we leave it there. 13. In the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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