TMI Blog1976 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment Scheme at Calcutta from his brother, Sri H. S. Ghosh, on July 2, 1963. This plot was sold by the assessee to Sri J. C. Sarvadhikari for a sum of Rs. 20,000 on March 21, 1964. The purchaser was the father-in-law of the assessee's daughter. The Income-tax Officer took the view that inasmuch as the assessee had paid an amount of Rs. 21,123 and the fair market value of the property on the date of transfer was not less than Rs. 42,000, the provisions of section 52 of the Act were applicable and as such he imposed capital gains tax on the assessee in respect of this transaction. The decision was reversed by the Appellate Assistant Commissioner. The Tribunal has, however, taken the view that inasmuch as the consideration for which the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute was made with a view to avoid or reduce the tax liability. This being so, the question as referred must be read in the light of the decision given by the Tribunal, and as the Tribunal has considered the case only with reference to section 52(1) of the Act, it is not possible for us to read the question as being of such a general nature as to permit the argument sought to be raised. There is also another difficulty which prevents us from considering the question referred with reference to section 52(2) of the Act and that is that there is nothing on the record to indicate that the Inspecting Assistant Commissioner had given previous approval as is required by section 52(2) of the Income-tax Act. Counsel for the department urged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder does not indicate that the Income-tax Officer entertains such a belief. This being so, it was not open to the Tribunal to infer from the facts as is existing on the record, that the Income-tax Officer must have entertained such a belief. In a case where the assessment order does not indicate the formation of any such reasonable belief as is contemplated by section 52(1) of the Act, the infirmity cannot be cured on appeal before the Tribunal. Counsel for the department urged that the question as to whether the transaction was entered into with a view to avoid the tax liability is a question of fact and it is not open for us to go into the question in this reference. He drew our attention to a decision of the Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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