Section 52(2) of the Income-tax Act, 1961, can be invoked only if the stated consideration is less than the actual consideration that passed between the parties. Section 47(iii) of the Income-tax Act, 1961, deals only with actual gifts and not deemed gifts.

RAMANUJAM J.

At the instance of the Revenue, the following two questions have been referred to this court for its opinion by the Income-tax Appellate Tribunal :

"1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the Income-tax Officer was not justified in invoking the provisions of section 52(2) of the Income-tax Act, 1961, to arrive at the capital gains of Rs. 1, 89, 014 and assess it under section 45 of the Income-tax Act ?

2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the sum of Rs. 1, 89, 014 is not taxable to capital gains in view of section 47(iii) of the Income-tax Act, 1961, as gift-tax has been levied on the assessee under section 4(a) of the Gift-tax Act, 1958, on the very same transfer ?" *

The assessee in this case is an individual and she was a co-owner of a property in Mount Road, Madras, with 38/72 shares. The said property is said to have been sold for a sum of Rs. 5, 00, 000 in the previous year ended on March 31, 1970, corresponding to the assessment year 1970-71. The assessee elected to adopt the market value as on January 1, 1954, for the purpose of capital gains and the market value was put at Rs. 4, 00, 000. The Income-tax Officer found that the assessee inherited the property from her father, late Shri Mustafa, and in the estate duty assessment relating to the said Shri Mustafa, the value of the property has been finally fixed at Rs. 8, 39, 000. The Income-tax Officer, therefore, invoked the provisions of section 52(2) of the Income-tax Act, adopted the fair market value as Rs. 8, 39, 000 and worked out the capital gains accordingly and the assessee's share was determined at Rs. 1, 89, 014. Deducting the basic exemption of Rs. 5, 000, the chargeable capital gains were worked out at Rs. 1, 84, 014.The Income-tax Officer acting as the Gift-tax Officer also initiated proceedings and brought to tax the difference between the consideration shown in the document at Rs. 5, 00, 000 and the market value of Rs. 8, 39, 000 as a gift within the meaning of section 4(a) of the Gift-tax Act. The assessee's share of gift was determined at Rs. 1, 45, 958.

The assessee appealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner in relation to the income-tax appeal accepted the plea of the assessee and held that the Income-tax Officer was not justified in invoking the provisions of section 52(2) as there was no proof of undervaluation and the Revenue has not established that the sale price stated in the document of sale was different from the actual sale consideration that passed between the parties. In the gift-tax appeal, the Appellate Assistant Commissioner held that the case fell squarely under section 4(a) of that Act and the assessee was not, therefore, entitled to any relief.

The assessee as well as the Revenue appealed to the Tribunal, the assessee against the order of the Appellate Assistant Commissioner upholding the gift-tax assessment and the Revenue against the order of the Appellate Assistant Commissioner holding that section 52(2) of the Income-tax Act cannot be invoked on the facts and circumstances of the case.

The Tribunal sustained the gift-tax assessment. It, however, in relation to the income-tax assessment, found that as no understatement of the consideration has been established, section 52(2) cannot be invoked in this case. In support of the said view, the Tribunal has referred to the decision of this court in Sundaram Industries (P) Ltd. v. CIT. The Tribunal also held that in view of the gift-tax assessment on the difference between the fair market value of the property and the declared value treating it as a gift, section 47(iii) of the Income-tax Act stood attracted and, therefore, sections 45 and 52 cannot be invoked in this case.The question is whether the decision of the Tribunal in respect of the income-tax assessment could legally be