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TMI Blog1974 (9) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ing more than Rs. 80,000, being the consideration mentioned in the sale deed, there was no scope for the application of section 52(1) of the Income-tax Act, 1961 ?" The assessee is a private limited company. It owned two non-residential buildings. The buildings were sold by the company to one Smt. N. K. Vimala, one of its shareholders for Rs. 80,000. The Income-tax Officer during the course of the assessment for the year 1969-70, found that the fair market value of the buildings sold by the assessee was much higher than the value stated as consideration in the deed of transfer. The full market value, he found, was Rs. 1,20,000. He also found that the under-statement of the value of the sale deed was with the object of reduction of the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 256(1) of the Act, and the application is at page 15 of the paper book: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in law in holding that the assessee cannot be assessed to income-tax for capital gains by applying the provisions of section 52 of the Income-tax Act, 1961 ?" It is clear that the question that has actually been referred to this court is different from the question that the department wanted to be referred. We are satisfied that the real question that arose for decision before the Appellate Tribunal and which had in fact been considered by the Appellate Tribunal will be brought out only if it is worded in the manner indicated by the department in its application under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer was effected with the object of avoidance or reduction of the liability of the assessee under section 45, the full value of the consideration for the transfer shall, with the previous approval of the Inspecting Assistant Commissioner, be taken to be the fair market value of the capital asset on the date of the transfer. (2) Without prejudice to the provisions of sub-section (1), if in the opinion of the Income-tax Officer the fair market value of a capital asset transferred by an assessee as on the date of the transfer exceeds the full value of the consideration declared by the assessee in respect of the transfer of such capital asset by an amount of not less than fifteen per cent. of the value so declared, the full value of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under section 45 it may be difficult to define for all types of cases, as the conclusion must vary depending on the facts and circumstances of each case, and it being unnecessary for us to consider the scope of the provision in this reference, we express no opinion whatever on that aspect. Now, turning to sub-section (2) of section 52 all that the section requires for its application is that there must be a difference between the fair market value of a capital asset transferred by an assessee as on the date of transfer and the full value of the consideration declared by the assessee in respect of the transfer of such capital ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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