TMI Blog1982 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... egal heirs, Smt. Brijmoni Devi and others. This reference relates to the assessment year 1965-66 for which the previous year ended on the Dewali 2021. The assessee stated before the ITO that the property at No. 7, Jatindra Mohan Avenue, Calcutta, has been sold for Rs. 3 lakhs to Prayag Devi Trust, a trust created by Shri Laxmandas Agarwalla in which he and his wife, Smt. Brijmoni Devi, were trustees. The building was a five-storeyed brick-built building constructed on 10 cottahs-7 sq. ft. of land. The property was mortgaged to M/s. Allahabad Bank Ltd. to cover up the security for overdraft arrangement along with the other shares, etc. On the 30th June, 1960, the building was released by payment of Rs. 3 lakhs to the bank. According to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness and income from dividend. When the assessee went up in appeal before the AAC, he held that the ITO's view was rather liberal when the ITO estimated the fair market value of the property at Rs. 4 lakhs six years later and after considering the provisions of ss. 43 and 52(2) of the Act he held that the transfer was effected with the object of avoidance or reduction of the liability as provided in the Act. The assessee went up in appeal before the Tribunal. Various contentions were raised before the Tribunal and after considering the facts which we have mentioned hereinbefore and the Specific Relief Act and Contract Act referred to by the assessee, the Tribunal observed that it might be true that the assessee acted in different capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Controller was somewhat an off-hand method. In that case the High Court found that the Appellate Controller was not sure of the area which this structure covered but merely made a rough estimate of it. The High Court further held: ' Wherefrom he got the per cottah land value and per square foot rate of construction do not appear. If the Tribunal disregarded this off-hand method of valuation we do not find fault with the Tribunal.' In the instant case in the absence of production of valuation report of the valuer like Ballardie Thompson Mathews, we cannot hold that the valuation adopted by the architect was an off-hand method and as soon as it is held that it is not an off-hand method, we cannot accept the reasoning of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to be a favoured party. But the difficulty in accepting the Revenue's contention in this case is that there is no finding by any of the authorities that in fact the assessee had received more as a consideration than what the assessee had indicated in the statement, i e., more than Rs. 3 lakhs. If that is the position, then the question is whether any amount in this case, i.e., Rs. 1 lakh, said to be the difference between Rs. 3 lakhs, the price received and Rs. 4 lakhs, being the market value of the property, can be assessed to tax. There was some argument whether s. 52 of the Act was correctly invoked or not. We are not concerned with it. We are proceeding on the basis that s. 52 can be applied but in order to make the provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. We find that in the present case, it was not the contention of the revenue that the property was sold by the assessee to big daughter-in-law and five of his children for a consideration which was more than the sum of Rs. 16,500 shown to be the consideration for the property in the instrument of transfer and there was an understatement or concealment of the consideration in respect of the transfer. It was common ground between the parties and that was a finding of fact reached by the I.T. authorities that the transfer of the property by the assessee was a perfectly honest and bona fide transaction where the full value of the consideration received by the assessee was correctly disclosed at the figure of Rs. 16,500. Therefore, on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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