Delhi H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in its conclusion that s. 52(2) of the IT Act, 1961, was not applicable to the assessee’s case ?

High Court Of Delhi

CIT vs. D.L.F. United Ltd.

Sections 52(2)

Asst. Year 1970-71

Arijit Pasayat, C.J. & D.K. Jain, J.

IT Ref. No. 331 of 1979

7th September, 2000

Counsel Appeared

R.D. Jolly with Mrs. Premlata Bansal, for the Revenue : None, for the Assessee

JUDGMENT

ARIJIT PASAYAT, C.J. :

At the instance of the Revenue, the following question has been referred under s. 256(1) of the IT Act, 1961 (for short the “Act”), by the Tribunal, Delhi Bench “B” (in short the “Tribunal”), for opinion of this Court :

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in its conclusion that s. 52(2) of the IT Act, 1961, was not applicable to the assessee’s case ?”

2. The assessment year involved is 1970-71. The Tribunal allowed the assessee’s appeal with the following observations : “In the present case, there is no suggestion that the consideration for transfer as shown by the assessee was not the correct amount of consideration or that the assessee was in receipt of any additional amount not declared in its return of income. On the contrary, the genuineness and the accuracy of the amount of consideration received by the assessee was actually accepted by the Revenue when it assessed the capital gains of Rs. 52,500 offered by the assessee in its return in the original assessment made on 28th October, 1972. We, therefore, respectfully follow the above mentioned decisions and hold that s. 52(2) of the Act is inapplicable to the facts of the present case and was wrongly invoked by the ITO. This would mean that s. 45 without reference to s. 52 (2) will be applicable in the present case and the capital gains will be determined at Rs. 52,500 as originally determined in the original assessment. The ITO is directed to follow these directions.”

We have heard learned counsel for the Revenue. There is no appearance on behalf of the assessee in spite of notice.

It is submitted by learned counsel for the Revenue that the view taken by the Tribunal is not on a proper reading of s. 52(2) of the Act. A question relating to the applicability of s. 52(2) of the Act. A question relating to the applicability of s. 52(2) was decided by the apex Court in K.P. Varghese vs. ITO (1981) 24 CTR (SC) 358 : (1981) 131 ITR 597 (SC) : TC 22R.105. When the factual position of this case is considered in the background of such decision, the inevitable answer is in the affirmative, in favour of the assessee and against the Revenue.

The reference is, accordingly, disposed of.

[Citation : 247 ITR 446]

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