TMI Blog2008 (8) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that- the comparative transaction was not considered by the Appropriate Authority properly. There was no material placed on record to determine the fair market value and to arrive at such a conclusion. The Department had also failed to discharge its onus of establishing that the undervaluation was with a view to evade taxes. The order of pre-emptive purchase was not valid. - 719/93 - - - Dated:- 7-8-2008 - ANOOP V. MOHTA and PANGARKAR C. L. JJ. Shashank Manohar for the petitioner. A.S. Jaiswal and S.C. Mehadia. Judgment: Anoop V. Mohta J .- The petitioner has challenged an order dated February 23, 1993, passed under section 269UD(1) of the Income-tax Act, 1961 (for short "the ITA") and an order section 269UE(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for approach road for common use of both the parties. Considering the transferor's right for the use to the extent of 50 per cent. the burden on this account on the transferee works out to Rs. 78,125. The total expenditure mentioned above, works out at Rs. 4,56,109 and same are to be added back to the apparent consideration as per the provisions of section 269UA(1)(i) of the Act. The property was agreed to be sold at the rate of Rs. 125 per sq. ft which is the prevailing market rate of the property. The transferee relied upon one sale instance (sale instance mentioned hereinabove). The said property was sold at the rate of Rs.150 per sq. ft. It is stated that this property has better location due to the fact that it is adjoining to Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated. Respondents Nos. 1 and 2 in its return dated August 3,1993, contended that there is undervaluation of the property by 16.66 per cent. more and not at 26 per cent. less than the market rate as recorded in the order dated February 23, 1993. 4. The Division Bench of this court in Writ Petition No. 715 of 1993 Dr. Balwantrao Rangrao Akre v. Appropriate Authority dated November 17,1994, held that the difference in the fair market value of the property should be 15 per cent. or more. In the present case considering the terms and conditions of the agreement, with regard to the estimated cost of the compound walls, development charges are to be borne out by the transferee ; area of 1,250 sq. ft. is to be retained for approach road for com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the valuation of Rs. 4,50,000 as recorded above, we are of the view that it could not be termed as understated or undervalued for the purpose of the relevant provisions of this Chapter under the Income-tax Act. (C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC). 5. The Division Bench of this court in Balwantrao Akre (supra) has allowed the petition also on the ground that there was no material/reason mentioned with regard to the undervaluation in the show-cause notice by rejecting the case of the Department to remand the matter for fresh enquiry. 6. It is always necessary to consider the terms and conditions of such an agreement also while forming any opinion based upon the return/agreement for sale as filed in Form No. 37-I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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