COMMISSIONER OF INCOME TAX Vs. BALRAM PRASAD

JUDGEMENT

(1.) CONSEQUENT upon a sale deed being executed by the assessee -opposite party of a plot of land in favour of M/s. Quality Ice Cream, Calcutta, proceedings under Chapter XXA of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), for acquisition of the said plot were initiated by the Inspecting Assistant Commissioner of Income -tax (Acquisition) and, ultimately, an order was passed on November 11, 1975, under Section 269F(6) of the Act, wherein it was held that the apparent consideration in the sale deed fell short of the fair market value of the plot sold by about 60 per cent. and, accordingly, in view of the provisions of Section 269C(2)(b) of the Act it had to be held that there was conclusive proof that the consideration agreed upon between the parties had not been truly shown in the deed.

(2.) IT has been urged by the counsel for the applicant that the order dated November 11, 1975, passed by the IAC (Acquisition) under Section 269F(6) of the Act constituted material to establish that the assessee had in fact received something more than the sale consideration mentioned in the sale deed in question and that the Tribunal committed an error of law in holding that no material had been brought on record to establishthe aforesaid fact. Reliance was placed by the counsel for the applicant on Section 269C(2) of the Act which reads:

(3.) HAVING heard counsel for the parties, we are of the opinion that, in the instant case, it is not necessary to go into the question as to whether an order under Section 269F(6) of the Act can be looked into or not while proceeding under Section 52(2) thereof inasmuch as we find substance in the alternative submission made by the counsel for the assessee. Before taking the view on the basis of the order under Section 269F(6) of the Act that the Tribunal has erroneously stated that there was no material on record to show that the assessee had in fact received something more than the apparent sale consideration and as such a question of law arises from the order of the Tribunal, it has to be held that the said order contains a finding on the aforesaid fact. We have carefully perused the order dated November 1I, 1975, passed under Section 269F(6) of the Act and find substance in the submission made by the counsel for the assessee that the conclusion in the aforesaid order that the consideration agreed upon between the parties had. not been truly shown in the sale deed in question has been reached only on the basis of a presumption arising out of the circumstance that the apparent sale consideration fell short of the fair market value by about 60%. The said order contains no finding on the basis of any material other than the presumption mentioned above that the assessee had actually received anything more than that declared in the sale deed. In this connection, reference may usefully be made to the following observations about the scope of Section 52(2) of the Act made by the Supreme Court in the case of K.P. Varghese : [1981]131ITR597(SC) :