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TMI Blog2022 (2) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... ise than for adequate consideration. In order to determine the same, the context of the facts of the particular case needs to be appreciated. For determining Adequate consideration/rent, however, market rent or rate is not the sole yardstick; other circumstances of the case also need to be considered. Commissioner stressed that the adequacy of the price has to be judged only in the light of the market value of the property transferred and according to him, there is no other yardstick which could be applied to a situation like this. We are unable to agree. We may explain why we disagree with him by taking an example. Supposing an old lady who owns a neighbouring property, wants to part with it to a medical practitioner, so that the medical practitioner would be of immediate assistance to her as and when she needs it and she parts with the property at what the parties conceive to be a reasonable price, could it be said that there was a gift of the property to the extent of the difference between what is later taken to be the market value and what was conceived to be the reasonable price for the property. It has also to be remembered that the computation of market value is in most cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act was clearly flawed and rightly rejected by the learned ITAT. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent/assessee for the Assessment Year 2009-10 against which the respondent/assessee preferred an appeal before the learned ITAT, being ITA No. 5411/Del/2012. The learned CIT(A), however, accepted the appeals of the respondent/assessee for the Assessment Year 2008-09 and 2010-11. The appellant/revenue challenged these Orders in appeal(s), before the learned ITAT in the form of ITA No. 4789/Del/2012 and ITA No. 3403/Del/2014 respectively. 6. As noted hereinabove, the learned ITAT, by its common Order dated 01.11.2019, allowed the appeal(s) in favour of the respondent/assessee, holding that the Assessing Officer, in the facts of the case, could not have invoked Section 13(2)(b) read with Section 13(3) of the Act and directed deletion of the additions made by the Assessing Officer relying upon the said provisions. 7. The learned counsel for the appellant/revenue submits that the learned ITAT has erred in placing reliance on the Order of the learned CIT(A) for the Assessment Year 2008-09 while deciding the appeal of the respondent/assessee for the Assessment Year 2007-08. He submits that the learned ITAT has acted in total disregard of the law that each assessment year is a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant/revenue submits that the learned ITAT has also erred in holding that the rent received by the respondent/assessee from Hamdard Dawakhana (Wakf) is more than the standard rent under the Delhi Rent Control Act, 1958. He submits that the learned ITAT has not disclosed the source and the basis/calculation for reaching the figure of standard rent. The learned counsel for the appellant/revenue further submits that the learned ITAT, instead of setting aside the additions made by the Assessing Officer, should have remanded the matter to the Assessing Officer to decide the issue afresh by granting an opportunity to the respondent/assessee to confront the evidence on record. In this regard, he places reliance on the Order of the Supreme Court in Income Tax Officer v. M. Pirai Choodi, (2010) 15 SCC 283. 11. On the other hand, the learned senior counsel for the respondent/assessee submits that the learned ITAT has noted that as per the Lease Agreement between the assessee and the Hamdard Laboratories (India), the property at Asaf Ali Road had been let out to Hamdard Laboratories (India) right since 1981-82 with a periodical increase in the rent. The said Lease Agreement had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 SCC OnLine Del 969:(2012) 342 ITR 169 (Del); and iii. Commissioner of Income Tax v. Gangeshwari Metal Pvt. Ltd., 2013 SCC OnLine Del 270. 16. Lastly, the learned senior counsel for the respondent submits that the revenue has been accepting the Lease Agreement for the Asaf Ali Road property right since 1981 and has not invoked the provisions of Section 13(2)(b) read with Section 13(3) of the Act. The revenue cannot be allowed to flip-flop on the issue and it ought to let the matter rest rather than spend the taxpayers" money pursuing the litigation for the sake of it and should abide by the principle of consistency. In support, he places reliance on the following judgments: i. Commissioner of Income Tax v. Excel Industries Ltd., (2014) 13 SCC 459; ii. M/s Radhasoami Satsang, Saomi Bagh, Agra v. Commissioner of Income Tax, (1992) 1 SCC 659; and iii. Berger Paints India Ltd. v. Commissioner of Income Tax, Calcutta, (2004) 12 SCC 42. 17. We have considered the submissions made by the learned counsels for the parties. 18. As noted hereinabove, the questions of law raised by the appellant/revenue in the appeal is on the invocation of Section 13(2)(b) read with Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the duty entitlement passbook do not represent the real income of the assessee. Consequently, there is no reason for us to take a different view unless there are very convincing reasons, none of which have been pointed out by the learned counsel for the Revenue. 25. In Radhasoami Satsang v. CIT this Court did not think it appropriate to allow the reconsideration of an issue for a subsequent assessment year if the same "fundamental aspect" permeates in different assessment years. In arriving at this conclusion, this Court referred to an interesting passage from Hoystead v. Taxation Commr.2, wherein it was said: (Radhasoami Satsang case , SCC pp. 665-66, para 14) "14. … Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va Investment Pvt. Ltd. v. Commissioner of Gift Tax, Gujarat II, (2001) 9 SCC 111, while considering Section 4(1) of the Gift Tax Act, 1958, the Supreme Court held that "it is necessary for the Assessing Officer to show that the property has been transferred otherwise than for adequate consideration. The finding as to the inadequacy of the consideration is an essential sine qua non for application of the provisions of "deemed gift". The provision is to be construed in a broad commercial sense and not in a narrow sense. In order to hold that a particular transfer is not for adequate consideration, the difference between the true value of the property transferred and the consideration that passed for the same must be appreciated in the context of the facts of the particular case." 20.2.2. In Commissioner of Gift Tax, Tamil Nadu - I v. Indo Traders & Agencies (Madras) P. Ltd., (1981) 131 ITR 313 (Madras), again while considering the provision of Section 4(1)(a) of the Gift Tax Act, 1958, the High Court of Madras observed as under: "In order to apply this provision, it is necessary for the GTO to show that the property is transferred otherwise than for adequate consideration… ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cellor Elden held with regard to the facts of the case before him that inadequacy of price was out of the question and made the following observation at p. 246: "Inadequacy of price does not depend upon a person giving pretium affection is, from any peculiar motive, beyond what any other man would give, the reasonable price. But, further, unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not itself a sufficient ground for refusing a specific performance". The considerations which weighed with the courts in examining the adequacy of the consideration in respect of the sale by a minor or in respect of a relief for specific performance would also apply in the examination of a transaction under s. 4(1)(a). Unless the price was such as to shock the conscience of the court that it cannot be the reasonable consideration at all, it would not be possible to hold that the transaction is otherwise than for adequate consideration. In fact, in the Full Bench judgment of the Patna High Court, it is mentioned by Chief Justice Harries, that the adequacy of consideration is a matter for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not attract the applicability of section 4(a) of the Act. In order that the court may hold that a particular transfer is not for adequate consideration, the difference between the true value of the property transferred, and the consideration that passed for the same, must be appreciable in the context of the facts and figures of the particular case. It may be that in a given case a few hundred rupees would lead to the conclusion of inadequacy of consideration, whereas, in another case, a few lakhs of rupees may not lead to such conclusion. The expression 'adequate consideration' cannot be construed with precision but, as already stated above, it must be construed in relation to the facts and figures of each particular case". … If the Legislature had contemplated as a universal rule that the market value should alone be the criterion for testing the adequacy of consideration, the provision would have been differently worded. The wording would then have been, "where the property is transferred for less than its market value, then the difference between the market value and the consideration stipulated, shall be deemed to be the gift made by the transferor". Parliament not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rent received by the assessee from HLI far exceeds the valuation adopted by the MCD for the purpose of levying house tax as could be seen from the information furnished by the assessee and also that unless and until the learned Assessing Officer brings on record some credible information, the burden to rebut does not shift to the assessee. 16. We are, therefore, convinced with the reasoning given by the Ld. CIT(A) in his order for the Assessment Year 2008-09 wherein while dealing with this issue in detail, the Ld. CIT(A) reached a conclusion that on the date of the observations of the learned Assessing Officer that there is no mechanism with the Department to determine "valuation of rents" imperative the adjudicatory authorities to look further corroborative evidence in the absence of which it is not desirable to disturb the consistent view taken over a period of more than two decades. We are in agreement with the Ld. CIT(A) that not only on the basis of the rule of consistency but also on the basis of the facts relating to the rent received by the assessee from HLI vis-à-vis the rent under the Delhi Rent Control Act. Without vouchsafing the correctness of the informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctricity Act, 2003, the Supreme Court in Maharashtra State Electricity Distribution Company Limited v. Maharashtra Electricity Regulatory Commission & Ors., 2021 SCC OnLine SC 913, observed that the word "substantial question of law" means not only a substantial question of law of general importance, but also any substantial question of law arising in a case between the parties on which the decision in the lis depends. A question of law that arises accidentally or collaterally and has no bearing on the final outcome, will not be a substantial question of law. Whether the question raised is a question of law and, if so, whether the question is a substantial question of law is also not determined by the enormity of the stakes involved in the same. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or rights of the parties before it, if answered either way. Findings of fact recorded by the courts below, which would imply the CIT(A) and the learned ITAT in these appeals, cannot be reopened. Sufficiency or adequacy of the evidence to support a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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