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TMI Blog2008 (2) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with section 158BB of the Act - The net result of the aforesaid discussion is that the question as framed is answered against the Revenue and in favour of the assessee - 73 of 2001 - - - Dated:- 5-2-2008 - N. P. GUPTA and DEO NARAYAN THANVI JJ. K. K. Bissa for the appellant. Niraj Jain for Anjay Kothari for the respondent. JUDGMENT 1. This is an appeal by the Revenue, seeking to challenge the order of the learned Tribunal dated March 30, 2001, affirming the order of the learned Commissioner of Income-tax (Appeals) dated October 28, 1999, whereby the addition of Rs. 10,84,835, made by the Assessing Officer, in the assessment order dated January 29, 1999, was deleted. 2. For the present purposes, it would suffice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committees rates) and the difference between the consideration amount and the value adopted by the Sub-Registrar has been added as above. 3. In appeal, the learned Commissioner of Income-tax (Appeals) found the contention of the assessee to be more convincing and considered that there was some time lag between execution of the agreement and execution of the sale deed, during which time possibility of the increase in the stamp duty is not ruled out. Then it was also noticed that for certain amounts the assessee had himself made a disclosure. Then regarding the rates, it was also held, that the Assessing Officer had not brought on record any other evidence/materials about the more payment having actually been made, in support of the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a situation the value adopted by the Registrar for the purpose of charging the stamp duty cannot justifiably form the basis for holding the same to be the actual consideration to have passed between the parties and in turn for making the addition of the difference between this value and the value declared by the assessee. Thus, the order of the learned Commissioner of Income-tax (Appeals) was affirmed. 5. This appeal was admitted, vide order dated September 27, 2001, by framing the following substantial question of law: "Whether, on the facts and in the circumstances of this case, the Income-tax Appellate Tribunal was justified in law in confirming the deletion of addition of Rs. 10,84,835 holding that there could not be any additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-sections (2) and (3) of section 143, sections 144 and 145 shall, so far as may be applied, and a look at section 158BB shows that thereunder undisclosed income of the block period is to be the aggregate of the total income of the previous years falling within the block period, computed in accordance with the provisions of the Act, on the basis of the evidence found as a result of search or requisition of books of account, or other documents, and such other materials or information as are available with the Assessing Officer and relatable to such evidence as reduced by the aggregate of the total income or, as the case may be, as increased by the aggregate of the losses for such previous years determined in accordance with the further sub-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue, if were to be accepted, it obviously would have a necessary consequence of attracting the liability of capital gains tax in the hands of the seller, assuming the asset to have been sold at DLC rates, while a look at the provisions of section 50C, appearing in chapter relating to capital gains shows that, according to this provision, where the consideration received or accruing as a result of transfer by an assessee of a capital asset, being land or building, is less than the value adopted or assessed by the authorities of the State Government, being the Stamp Valuation Authorities for the purpose of payment of stamp duty in respect of such transfer, the value so adopted is deemed to be the full value of consideration received o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyance, is the actual amount paid by way of consideration to be taken to be undisclosed income of the assessee, or it is a deflated figure and, therefore, addition is required to be made. If it is taken to be deflated figure then it is for the Department to lead positive evidence about the fair market value of the property and further to show that the property was undervalued in the document of sale before authorising the Assessing Officer to make any addition in the income on that count. 12. The hon'ble Supreme Court in K. P. Varghese [1981] 131 ITR 597 was dealing with the provisions of section 52(2) as it then existed, which also related to computation of the capital gain and it was held as under (page 615): "It is a well-kn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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