B.P.JEEVAN REDDY, C. J. - (1.) HEARD counsel for the petitioner and learned counsel for the Revenue.
(2.) THIS writ petition is directed against an order of the Commissioner of Income-tax, under section 264 of the Income-tax Act, 1961, dismissing the revision petition filed by the petitioner-assessee. The assessment year concerned is 1984-85. During the previous year relevant to the said assessment year, the assessee purchased a house property. According to the sale deed, the market value for the purpose of stamp duty was shown at Rs. 2,07,500 but the actual consideration was stated to be Rs. 1,50,000. The Income-tax Officer noticed the extent of the built up area as also the rent and opined that the assessee has suppressed the true sale consideration. However, he added only fifty per cent. of the difference, i.e., Rs. 28,750 to the income of the assessee. (The addition of half the difference amount was for the reason that the said house was purchased in two portions, one in the name of the assessee and the other in the name of the wife). Against the said addition, the assessee filed an appeal which was dismissed by the Appellate Assistant Commissioner. The Appellate Assistant Commissioner also noticed that, since the sale deed mentions the value of the property at Rs. 2,07,500 for the purposes of stamp duty and stamp duty was paid thereon and also because the assessee has not produced any documentary evidence to support his case, there are no grounds for interference. The assessee did not file an appeal to the Tribunal against the order of the Appellate Assistant Commissioner. The Commissioner set out the contentions of the petitioner in extenso but held "in the instant case, stamp duty had been paid according to the circle rates fixed by the State Government and hence learned counsels contention does not apply in this case." A reading of his order shows that he was mainly influenced by the fact that the stamp duty was paid on Rs. 2,07,500. We are of the opinion that we cannot recognise any rule of law to the effect that the value determined for the purpose of stamp duty is the actual consideration passing between the parties to a sale. The actual consideration may be more or may be less. What is the actual consideration that passed between the parties is a question of fact to be determined in each case, having regard to the facts and circumstances of that case. In this case, the petitioner brought to the notice of the Commissioner that the portion purchased by him was under the tenancy of his mother and actually they were themselves occupying it. This may be a reason for selling the house at a rate lesser than fair market value or it may not be; but that is a question of fact. It is true that the Income-tax Officer had observed that the petitioner had not placed any material before him in the circumstances of the case, but he seems to have omitted to notice that the purchased premises were under the tenancy of the assessees mother and the assessees family was said to be occupying it. In the circumstances, the orders of all the three authorities are quashed and the matter is remitted to the Income-tax Officer for redetermination of the actual consideration which was paid by the assessee in the said transaction afresh in the light of the observations made above. The assessment may be finalised accordingly.
(3.) THE writ petition is allowed in the above terms. No costs.;