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TMI Blog2009 (2) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. JUDGMENT JUSTICE D.A.MEHTA - On 24/4/2000 the Court admitted the appeal by formulating following substantial question of law :- "Whether the Appellate Tribunal is right in law and on facts in holding that when the assessee transferred its business assets to Nirma Chemical Works and S.K. Family Trust by three installments without any consideration, capital gain was not leviable as also balancing charge under section 41(2) was not imposable?" 2. The Assessment Year in question is 1984-1985, the relevant previous year being calendar year 1983. The Assessee trust became a partner in a partnership firm constituted on 16/1/1982, whereby the Assessee was having 60 % share and the remaining 40 % share was held equally at 20% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ONER OF INCOME-TAX, MADRAS Vs. SHIVAKAMI CO. P. LTD, (1986) 159 ITR 71. As regards the balancing charge under section 41(2) of the Act, it was found by Commissioner (Appeals) that as the transfer was at the book value, there would not be any balancing charge unless the book value was more than the written down value of the assets as per Income Tax records. That, this was not even the case of the Assessing Officer and hence the said addition was also deleted. 5. The Revenue challenged the order of Commissioner (Appeals) before Tribunal, who vide impugned order has confirmed the findings of Commissioner (Appeals) by referring to the Apex Court decision on which reliance has been placed by Commissioner (Appeals). The findings in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . SMT. NITIBEN CHAMANLAL PAREKH, (1994) 209 ITR 527. The learned advocate, therefore, submitted that there was no error in the impugned order of Tribunal so as to warrant interference. 8. There is no dispute on facts. It is an accepted position that the transactions took place at book value and there is no evidence that the assessee received anything more than the stated consideration. In case of CIT Vs. Shivkami Co. P. Ltd. (supra) the Apex Court was dealing with the first proviso to Section 12B(2) of the Indian Income Tax Act, 1922, corresponding to section 52 of the Act. After referring to the earlier decision in case of K.P. Varghese Vs. ITO (1981) 131 ITR 597, the Apex Court has stated that:- "......... Though the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Revenue has made no attempt to establish that there was any understatement though it might be that shares were sold at an undervalue. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx .......... The proviso helps or enables the Department by providing a way to determine the market value. But the proviso is applicable only where the full value for the consideration has not been stated. There is no evidence, direct or inferential, in these cases that the full consideration had not been stated in the document." 9. Thus, on facts, as concurrently found by both the appellate authorities, namely Commissioner (Appeals) and the Tribunal, there is no evidence to show that the Assessee received anything more than what is stated in the document. Applying th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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