BALASUBRAHMANYAN, J.


The questions of law for our opinion in this stated case by the Tribunal are as follows :


1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the provisions of s. 52(2) could not be applied to the assessee's case ?


2. Whether, on the facts and in the circumstances of the case, the Tribunal's view that for applying the provisions of s. 52(2)

"the ITO should first prove that there was under-statement of consideration passed, is sustainable in law ?" *


The questions of law have got to be answered in the light of the factual finding rendered by the Tribunal in its order in appeal. They have found as fact that the capital asset in question in this case, namely, land, was sold for a sum of Rs. 2, 11, 750 was shown in the document of conveyance. The purchaser of the property was a third party and not in any way related to the assessee. The Tribunal found that there was no proof that the assessee had received any consideration in excess of what was stated in the sale deed.


On the basis of the above finding, the Tribunal held that the ITO was in error in invoking s. 52(2) and in substituting for the sale consideration the market value of the property at Rs. 3, 20, 000. The Tribunal held that the sale consideration of Rs. 2, 11, 750 must be taker to be the full value of consideration of the purpose of working out the chargeable capital gains.


This decision of the Tribunal is quite in accordance with the ruling of the Supreme Court reported

in K. P. Varghese vs. ITO. Following that decision, we answer the questions of law in favour of the assessee and against the Department. There will, however, be no order as to costs.