1983 (10) TMI 8

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..... the Income-tax Act ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the sum of Rs. 1,89,014 is not taxable to capital gains in view of section 47(iii) of the Income-tax Act, 1961, as gift-tax has been levied on the assessee under section 4(a) of the Gift-tax Act, 1958, on the very same transfer ? " The assessee in this case is an individual and she was a co-owner of property in Mount Road, Madras, with 38/72 shares. The said property is said to have been sold for a sum of Rs. 5,00,000 in the previous year ended on March 31, 1970, corresponding to the assessment year 1970-71. The assessee elected to adopt the market value as on January 1, 1954, for the purpose of capital g .....

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..... ppellate Assistant Commissioner held that the case fell squarely under section 4(a) of that Act and the assessee was not, therefore, entitled to any relief. The assessee as well as the Revenue appealed to the Tribunal, the assessee against the order of the Appellate Assistant Commissioner upholding the gift-tax assessment and the Revenue against the order of the Appellate Assistant Commissioner holding that section 52(2) of the Income-tax Act cannot be invoked on the facts and circumstances of the case. The Tribunal sustained the gift-tax assessment. It, however, in relation to the income-tax assessment, found that as no understatement of the consideration has been established, section 52(2) cannot be invoked in this case. In support of .....

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..... w taken by the courts with reference to the interpretation of section 52 of the Income-tax Act, the view taken by the Tribunal should be taken to be quite in accordance with the true legal position. As a matter of fact, even apart from what has been stated above, in respect of two of the other co-owners of the same property, identical questions arose in T.C. No. 122 of 1976 (CIT v. Jankut Mustafa Bilgen [1986] 157 ITR 728 , and T.C. No. 668 of 1976 (CIT v. Durney Mustafa Bilgen) and this court by its judgment dated October 10, 1979, has held that the facts and circumstances of the case do not call for the application of section 52 of the Income-tax Act as understatement of the consideration has not been established in that case. Regardi .....

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