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TMI Blog1991 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 32,10,140 made in the total income of the assessee on account of capital gains ? and (2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has been right in law in allowing a further sum of Rs. 27,383 under section 35B of the Income-tax Act, 1961 ?" The matter here pertains to the assessment year 1977-78. The facts relevant to the issues raised are that, on December 31, 1976, the assessee-firm was sold as a going concern along with all its assets and liabilities to Messrs. Panipat Food Limited. The total sale consideration was Rs. 20,21,767.68 out of which a sum of Rs. 4,50,000 was said to be the value of the goodwill. The Inspecting Assistant Commissioner, by his order of February 6, 1981, by invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the consideration declared by the assessee is satisfied. If, therefore, the Revenue seeks to bring a case within sub-section (2), it must show not only that the fair market value of the capital asset as on the date of transfer exceeds the full value of the consideration declared by the assessee by not less than 15 per cent. of the value so declared, but also that the consideration has been understated and that the assessee has actually received more than what is declared by him. These are two distinct conditions which have to be satisfied before sub-section (2) can be invoked by the Revenue and the burden of showing that these two conditions are satisfied rests upon the Revenue. Such thus being the settled position in law, no occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich worked out to Rs. 27,373, was then allowed by the Tribunal as weighted deduction. As mentioned earlier, this clearly raises question of law which requires to be referred. Counsel for the assessee, on his part, sought to contend that the finding recorded under the second question was one of fact and, therefore, did not qualify for being referred. Support for this was sought from three judgments of the High Court of Delhi ; these being CIT v. Indian Aluminium Cables Ltd. (No. 2) [1990] 184 ITR 587 CIT v. Raunaq International Ltd. [1986] 158 ITR 701 and CIT v. Jay Engineering Works [1984] 149 ITR 297. A reading of these rulings would show that neither of them fits in with the facts of the present case and they do not, therefore, provide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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