9911796707
TMI Blog1990 (2) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,58,338. The Income Tax Officer was of the view that the sale value disclosed was rather low and made a reference to the Valuation Officer under section 55A of the Income Tax Act, 1961 (hereinafter referred to as the Act ), who estimated the market value of the properties sold at Rs. 4,17,000. On the basis of that valuation, the Income Tax Officer came to the conclusion that the fair market value of the transferred assets exceeded the consideration declared by the assessee by more than 15 per cent. and invoked the provision of section 52(2) of the Act with the prior approval of the Inspecting Assistant Commissioner and fixed the value of the properties sold by the assessee at Rs. 4,17,000. The cost of acquisition of the properties sold by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, the Department preferred an a appeal to the Tribunal urging that the appellate Assistant Commissioner was in error in holding that the provisions of section 52(2) of the Act were not applicable. During the course of the hearing of the appeal, reliance was sought to be placed on behalf of the Revenue on certain affidavits given by five of the purchasers from the assessee to the effect that the sale of the plots was effected by the assessee at Rs. 22,000 per ground, though shown in the document at Rs. 16,500 per ground, and the difference was paid by purchasers to the seller without bringing that into records. The affidavits further proceeded to state that the deponents had declared the difference amount paid by them in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in the form of affidavits dated September 13, 1976, referred to which was filed before the Tribunal by the Revenue for the first time after affording full opportunity both to the assessee and the Revenue ? 2. Learned counsel for the assessee strenuously contended that the affidavits relied on by the Revenue were available even at the initial stages of the proceedings and had not been produced and the mere circumstance that the affidavits are now filed to ascertain the applicability of section 52(2) of the Act is not sufficient to allow their admission at the stage of the appeal before the Tribunal. Reliance in this connection was also placed upon the decision reported in Velji Deoraj and Co. v. CIT [1968] 68 ITR 708 (Bom) . On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 22, 1977, these affidavits were in the possession of the Department. Even so, presumably owing to lack of co-ordination between the two different section of the Department, these affidavits were not placed before the Income Tax Officer at the time when the assessments were made or even by the time the appeal was decided by the Appellate Assistant Commissioner and the Revenue could not, therefore, make use of these affidavits at those stages. However, the main contention on behalf of the Revenue in its appeal before the Tribunal was regarding the applicability of section 52(2) of the Act and, in order to establish that that provision stood attracted, reliance was placed by the Revenue on the affidavits. It is in this context that we may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the interest of justice and in order to correctly adjust the liability of the assessee for payment of tax, it would be necessary to remit the matter to the Appellate Assistant Commissioner for a fresh consideration on the basis of the affidavits. We may also observe that under rule 29 of the Rules, if the Tribunal required any document to be produced or affidavit to be filed to enable it to pass orders or for any other substantial cause, it may allow the document to be produced or the affidavits to be filed. This power of the Tribunal has been, in this case, properly exercised, as could be seen from paragraph 30 of the order of the Tribunal. Therein, the Tribunal felt that the affidavits are all of such a nature that they merited pausing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the lower authorities for such consideration. On the facts this case, the Tribunal felt that in the interest of justice in order to decide the question of the applicability of section 52(2) of the Act to the assessee which was agitated before it, it would be necessary to investigate and ascertain the facts in that regard, especially when certain affidavits had been relied on, which, to some extent, prima facie made out that more than the stated consideration had passed under the sale deeds. These affidavits would be relevant an necessary for deciding the question of the application of section 52(2) of the Act and that was the reason why the Tribunal, in the exercise of its discretion, directed the Appellate Assistant Commissioner to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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