TMI Blog1992 (10) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... has adopted the net value of the property after deducting 50 per cent of the unearned increase in market value which was not justified. Therefore, he issued show-cause notice dated 20-9-1988 to the assessee to which the assessee has furnished reply by letter dated 6-10-1988 wherein he justified value of gift returned at Rs. 50,000 by deducting 50 per cent of the unearned increase in market value of the property. 2. The CGT considered the objection and also the valuer's report furnished by the assessee. The valuer has taken value of free-hold property at Rs. 20 per sq. ft. but the value of the impugned property which is subject to restrictions at Rs. 16 per sq. ft. and deducting 50 per cent of unearned increase in the value of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee made a pertinent observation that under section 6 of the Gift-tax Act as well as under section 7 of the Wealth-tax Act, the value of an asset other than cash shall be estimated to be the price which, in the opinion of the Assessing Officer, it would fetch if sold in the open market on the valuation date or on the date of the gift. Where the property sold is subject to restriction or payment of 50 per cent unearned increase in market value the market price receivable by the assessee would be the net price after taking into account 50 per cent of the unearned increase in market value payable to the Society. Therefore, he vehemently urged that the market value of the impugned property is net value as adjusted and not gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of CGT v. Biswanath Paul [1970] 76 ITR 39 (Cal.) and CGT v. K.A. Sheik Dawood [1983] 139 ITR 261 (Mad.) and submitted that the judgment in the case of P.N. Sikand cited, was not applicable as the object of gift-tax was different. 5. The learned counsel for the assessee relied on the judgment of the Bombay High Court in the case of jehangir Mahomedali Chagla v. M.V. Subrahmanian, Addl. First ACED [1985] 155 ITR 637 and urged that the market value of the property has been rightly determined by the valuer and therefore, the directions given by the CGT were wrong. 6. We have duly considered the submission of the parties, relevant case law and the paper compilation filed. It is axiomatic that decision in each case turns on its own facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land had to be paid to the DDA before the DDA permitted the transfer of the lease-hold land. Similarly, the decision in the case of Gobind Ram Sethi by the Third Member turned on the vital fact that as per the terms of the sub-lease deed, the assessee's rights in the plot of land bearing No. 380 in Block B, New Friends Co-op. House Building Society, New Delhi were absolutely restrictive and there was total ban on transfer to a non-member of the Society and therefore, the value of gift was taken at the face value, i.e., actual investment made in the said plot with the co-operative society at Rs. 22,624. Thus, all the aforesaid cases turned on the peculiar facts applicable to them. 7. In the case of the assessee, the relevant facts as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision reads as under : " When a member intends to transfer the sub-plot allotted to him by sale, gift, lease, mortgage or in any manners whatsoever or intends to create any charge, interest etc. on the said sub-plot, he shall submit an application to the society expressing his intention to transfer the said subplot in any manner mentioned above and he shall give full details of the person in whose favour he intends to transfer the said sub-plot. He shall also mention in the said application the amount of consideration which the proposed transferee is going to pay him for the said transfer. The Managing Committee will have full discretion whether to admit or not the person as a member of the society proposed by the existing applicant membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of transfer in the name of family member or legal heir. In our opinion, the exception provided in this case distinguishes the case from the cases relied upon by the learned counsel of the assessee. Therefore, those case laws and decisions are not applicable, though there could be no dispute about the ratios laid down therein. Admittedly, the transfer has taken place to the only son and legal heir of the assessee on account of old age of the assessee and therefore, only the legal heir is called upon to pay transfer fee of only Re. 1 and not the assessee transferor as in the cases relied upon by the learned counsel of the assessee. As laid down by the Calcutta High Court in Biswanath Paul's case wherein properties were gifted by father to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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