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TMI Blog1984 (8) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s. 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. Thereafter, proceedings under s. 52(2) of the Act were initiated against the opposite party and accepting the reasonings of the IAC (Acquisition) in the acquisition proceedings, the capital gains were worked out by the ITO whose order was upheld by the AAC of Income-tax. The assessee went up in appeal before the Income-tax Appellate Tribunal (A) Bench, Allahabad (hereinafter referred to as " the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h apparent consideration, it shall be conclusive proof that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer ; (b) where the property has been transferred for an apparent consideration which is less than its fair market value, it shall be presumed, unless the contrary is proved, that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer with such object as is referred to in clause (a) or clause (b) of sub-section (1). " On this basis, it was urged that the finding recorded in the order under s. 269F(6) constituted conclusive proof of the fact that the consideration had not been truly stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned above that the assessee had actually received anything more than that declared in the sale deed. 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 s. 269F(6) of the Act can be looked into or not while proceeding under s. 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 s. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be invoked by the revenue and the burden of showing that these two conditions are satisfied rests on the revenue. It is for the revenue to show that each of these two conditions is satisfied and the revenue cannot claim to have discharged this burden which lies upon it, by merely establishing that the fair market value of the capital asset as on the date of the transfer exceeds by 15% or more the full value of the consideration declared in respect of the transfer and the first condition is, therefore, satisfied. The revenue must go further, and prove that the second condition is also satisfied. Merely by showing that the first condition is satisfied, the revenue cannot ask the court to presume that the second condition too is fulfilled, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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