TMI Blog1993 (9) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case, the Income-tax Appellate Tribunal was right in law in holding that section 52(2) of the Income-tax Act, 1961, had no application to the facts of the case and consequently the Commissioner's directions to the Income-tax Officer in that behalf were bad?" The aforesaid questions arise in the background of the facts that the assessee transferred the land admeasuring 1,026 sq. yards of village Madalpur, Ahmedabad city, for a sale consideration of Rs. 45,000 during the assessment year 1972-73. After deducting the expenditure of Rs. 1,871, the sale price was mentioned as Rs. 43,129. Out of land admeasuring 1,026 sq. yards, actually 900 sq. yards of land was sold and 126 sq. yards of land was kept for road and hence it was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Income-tax Officer and directed him to make fresh assessment after applying properly the provisions of section 52 and to recompute the capital gain after taking into consideration the assessee's contention as regards the land used for the road. Against that order dated December 24, 1976, the assessee preferred an appeal before the Tribunal, which was numbered as Income-tax Appeal No. 1879/(Ahd.) of 1976-77. The Tribunal arrived at the conclusion that before invoking the provisions of section 52 of the Act, the Department should have something on record to show that the assessee had received some amount in excess of the sale consideration declared by the assessee. For this purpose, the Tribunal relied upon various decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 597 (SC), while dealing with the provisions of section 52(2) of the Income-tax Act, the Supreme Court has held that it can be invoked only where the consideration for the transfer of a capital asset has been understated by the assessee or, in other words, the full value of the consideration in respect of the transfer is shown at a lesser figure than that actually received by the assessee, and the burden of proving such understatement or concealment is on the Revenue. It is further held that the sub-section has no application in the case of an honest and bona fide transaction where the consideration received by the assessee has been correctly declared or disclosed by him. The aforesaid decision is followed in the case of CIT v. Shivakam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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