JUDGMENT :- CHITRA VENKATARAMAN, J. 1. The following substantial questions of law are raised in the above Tax Case Appeal filed by the assessee for the assessment year 1988-89. 1. Whether on the facts and in the circumstances of the case, the ITAT had jurisdiction to decide on the quantum of cost of construction, especially when such a ground was not before the ITAT? 2. Whether on the facts and in the circumstances of the case, the ITAT was justified in adopting the rate of Rs.576/- sq.ft. estimated as consideration in Form 37-I filed before the Appropriate Authority as against the cost of construction of Rs.240/- per sq.ft. adopted in form No. 34A, Application for Certificate under Section 230A(1) of the Income Tax Act, 1961? 3. Whether on the facts and circumstances of the case, the ITAT was justified in not upholding the cost of construction of Rs.240/- per sq.ft. adopted by the Commissioner (Appeals) based on the information provided by the Assessing Officer? 4. Whether on the facts and in the circumstances of the case, the ITAT was justified in adopting Rs.576/- per sq.ft. by making reference to the Form 37-I filed before the Appropriate Authority as rate for arriving the cost of construction which was not the subject matter before the Appropriate Authority? 5. Whether on the facts and in the circumstances of the case, the ITAT was justified in adopting Rs.576/- per sq.ft. as cost of construction which is inconsistent with the evidence available and contrary to the facts on record? 6. Whether on the facts and in the circumstances of the case, the ITAT erred in holding that the amount payable to the sisters of the appellant as per the Will of the appellant's father is not deductible in computing the capital gains assessable to tax? 7. Whether on the facts and in the circumstances of the case, the ITAT is justified in holding that the obligation to make the payment to the sisters under the Will was a voluntary act of the appellant in the light of the agreement of Distribution of Assets of the Estate of the late Mr.J.D.Italia dated 18th July 1986? 2. The assessee herein was the owner of the immovable property situated at 90, Anna Salai, Madras, known as "Wellington Talkies", measuring about 20.419 grounds. The assessee, along with his father J.D.Italia, jointly owned the property, each having 50% share. 2. The assessee herein was the owner of the immovable property situated at 90, Anna Salai, Madras, known as "Wellington Talkies", measuring about 20.419 grounds. The assessee, along with his father J.D.Italia, jointly owned the property, each having 50% share. J.D.Italia died on 20.9.1985. Under the Will executed by J.D.Italia dated 10.6.1985, the assessee was given 1/3rd share in the 50% share of J.D.Italia in the Wellington Talkies property. Apart from this, the assessee's sons were also given equal share as that of the assessee. Thus together with the share that the the assessee had originally, the total extent of share held by the assessee came to 67.68% share in the property and two sons held 16.16% each. As per the terms of the Will of the deceased J.D.Italia, the assessee's sisters and mother were given certain amount of cash. Apart from that the assessee's sisters were also given 10% share in the Wellington Talkies property or Rs.1,00,000/- each payable by the assessee. The Will stated that the choice as to whether the daughters were to be given 10% share in the Wellington property or to be given cash was, however, left to the assessee's choice and that the said decision shall not be questioned by the assessee's sisters and mother. Thus, in terms of the Will, the assessee, his mother and sisters entered into an agreement on 18.5.1986 as to the distribution of Assets in the Estate of the late Mr.J.D.Italia. Thus, apart from cash payment, instead of 10% share in the immovable property, the assessee paid a sum of Rs.6,00,000/- to each of his sisters. It is seen from the facts herein that along with his two sons, the assessee entered into a development agreement with M/s.Kalyani Constructions Private Limited (hereinafter referred to as construction company) on 27.9.1987, whereunder, the assessee and the construction company had two options viz., outright sale of the entire property for a consideration of Rs.4,80,00,000/- or cash payment of Rs.66,00,000/- and constructed area of 36,000 sq.ft. to be built for the assessee and his two sons. to be built for the assessee and his two sons. In terms of provisions of Chapter XX-C, the assessee and the construction company filed an application under Form No. 37-I, wherein they gave total apparent consideration for the transfer of the 14.419 ground as follows:- ANNEXURE The Total Apparent Consideration for the transfer of the 14.419 Ground includes: a) Payment of Rs.66,00,000,00 in two instalments - Rs.10,00,000/- immediately the agreement is signed and Rs.55,00,000/- within a period of six months of the date of signing the Development Agreement b) Obligation to construct and provide to the Owners 36,000 sq.ft., of office area at the Developers' cost. c) Obligation to provide to the Owners flats/flat having an aggregate area of 3,000 sq.ft., at the Developers' cost. d) Rented flat until flats/flat till point "C" is provided. The Apparent consideration is worked out as follows: 1.Cash to be received : Rs.66,00,000.00 2.Market value of constructed area to be retained by the owners : Rs.2,07,45,489.50 a) 36,000 sq.ft., @ Rs.1,000/- per sq.ft : Rs.3,60,00,000.00 b) Less : Value of 6 grounds @ Rs.25,43,418.42 per ground:Rs.1,52,54,510.50 ---------------------------- Rs.2,07,45,489.50 ---------------------------- 3. Market value of 3,000 sq.ft., flats/flat : Rs. 8,00,000.00 4. Value of rent free accommodation : Rs. 1,50,000.00 5. Compensation for evicting 2 tenants : Rs. 33,00,000.00 6. Owners' contingency liabilities to be borne by the Developers. : Rs. 23,00,000.00 ----------------------- Total apparent consideration for 14.419 grounds : Rs.3,38,95,489.50 ----------------------- (Rupees Three Crores Thirty eight Lakhs Ninety five thousand Four hundred eighty Nine and paise fifty only) e) Sell the complete 20.419 grounds to the Developers for Rs.4,80,00,000/- (Rupees Four Crores and Eighty Lakhs) the choice being left exclusively to the Owners to decide whether to develop or to sell. 3. By proceedings dated 24.11.1987, the Appropriate Authority gave 'no objection certificate', treating the apparent consideration at Rs.3,38,95,489.50, which means the assessee had elected the first option of receiving a sum of Rs.66,00,000/- by way of cash and the built-up area as given in the agreement. 4. On the clearance thus obtained, on the re-working done on the total extent of property at 86,514 sq.ft., the assessee was given the constructed area of 28759 sq.ft. The assessee worked out the total consideration in the application filed under Section 230A in Form 34-A for transfer of 13.031708 grounds as follows:- Rs. 4. On the clearance thus obtained, on the re-working done on the total extent of property at 86,514 sq.ft., the assessee was given the constructed area of 28759 sq.ft. The assessee worked out the total consideration in the application filed under Section 230A in Form 34-A for transfer of 13.031708 grounds as follows:- Rs. (i) Cash Consideration 66,00,000 (ii) Cost of construction of 28,302 sq.ft., at the rate of Rs.240/- per sq.ft.67,92,480 (iii) Cost of two flats14,65,356 (iv) Cost of providing rented accommodation 1,42,164 ---------------- Total Consideration 1,50,00,000 ---------------- 5. For the purpose of working out the capital gains, as per Clause Nos. 8, 9 and 18 of the development agreement dated 27.9.1987, the assessee took the cost of construction of 28759 sq.ft. at Rs.248/- per sq.ft. The assessee also claimed deduction of the amount paid to the sisters in terms of the Will. In computing the capital gains, the Assessing Officer held that the developers had constructed a total extent of 1,20,773 sq.ft. Since the assessee had gone in for clearance under Chapter XX-C, the cost of construction was to be on the lines of what the Appropriate Authority held as apparent consideration. In these circumstances, the Assessing Officer viewed that the full value of the consideration for the purpose of computation of capital gains under Section 48 of the Income Tax Act was to be taken at Rs.3,38,96,489/-. The assessee took the plea that the computation on the capital gains could not be based on the apparent consideration as given under Section 269UA(b)(1)(i) and (ii) of the Income Tax Act. Considering the fact that apparent consideration was defined as market price and that under Section 48, Capital gains had to be computed by taking the full value of consideration received as a result of the transfer of capital assets, the amount given under Form 37-I before the Appropriate Authority should not be taken as the basis for computing the capital gains. 6. As regards the payment made to the assessee's sisters, the Assessing Officer rejected the plea of the assessee holding that the amount of Rs.16,00,000/- was not paid to the legatees as on the date of assessment; hence, the same was not liable to be considered for deduction in computing the capital gains. 6. As regards the payment made to the assessee's sisters, the Assessing Officer rejected the plea of the assessee holding that the amount of Rs.16,00,000/- was not paid to the legatees as on the date of assessment; hence, the same was not liable to be considered for deduction in computing the capital gains. Aggrieved by this, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who, however, agreed with the assessee and allowed the appeal. 7. The first Appellate Authority took the consideration as regards the cost of construction herein at the rate of Rs.240/- per sq.ft. and not at the rate given in Form 37-I before the Appropriate Authority. The Commissioner of Income Tax (Appeals) pointed out that under Section 48, capital gains herein was to be worked out on the total consideration and not at the apparent consideration as given under Chapter XX-C of the Income Tax Act. Thus agreeing with the assessee, the Commissioner of Income Tax (Appeals) set aside the assessment and directed the Income Tax Officer to re-work the capital gains, taking the cost of construction at Rs.240/- per sq.ft. 8. As regards the deduction on the amount paid to the sisters, the Appellate Authority pointed out to the Will dated 10.6.1985, which gave the discretion to the assessee to decide on whether to give 10% share in the Wellington property or Rs.1,00,000/-payable to each of the sisters. The Appellate Authority pointed out that the Assessing Officer should have given deduction of at least Rs.3,00,000/- as per the terms of the Will, since they are entitled to a share in the property; hence, disallowance of the entire claim was untenable. Accordingly, the Commissioner of Income Tax (Appeals) held that the ground of deduction was not proper. He worked out 10% share in the property to be given to each of the daughters as per the Will and granted the relief, taking Rs.6,00,000/- each rounded off to Rs.18,00,000/-. Thus, the first Appellate Authority allowed the appeal. Aggrieved by this, the Revenue went on appeal before the Income Tax Appellate Tribunal. 9. As far as the order of the Commissioner of Income Tax (Appeals) in adopting the value of Rs.240/- per sq.ft. is concerned, the Tribunal adopted the value of Rs.576/- per sq.ft. as taken by the Appropriate Authority. Thus, the first Appellate Authority allowed the appeal. Aggrieved by this, the Revenue went on appeal before the Income Tax Appellate Tribunal. 9. As far as the order of the Commissioner of Income Tax (Appeals) in adopting the value of Rs.240/- per sq.ft. is concerned, the Tribunal adopted the value of Rs.576/- per sq.ft. as taken by the Appropriate Authority. Thus, while setting aside the order of the Commissioner of Income Tax (Appeals), it modified the order of the Assessing Officer, taking the extent of constructed property given to the assessee at 28,302 sq.ft. and directed the Assessing Officer to adopt the value of Rs.576/- per sq.ft. 10. As far as the payments made to three sisters are concerned, the Tribunal held that it was only an application of money and hence, it could not be given deduction. Accordingly, the Tribunal set aside the order of the Commissioner of Income Tax (Appeals). Thus, the Department's appeal was allowed in part. Aggrieved by the same, the present appeal have been filed by the assessee. 11. Learned counsel for the assessee took us through the provisions of Sections 45 and 48 as well as Chapter XX-C of the Income Tax Act, particularly the definition of 'Apparent Consideration' and the terms of the development agreement, whereby the assessee was paid cash as well as constructed area; to contend that for the purpose of working out the capital gains, the full value of the consideration received or accruing as a result of the transfer of capital asset alone should be taken note of and not the apparent consideration. Thus, while for the purpose of Section 37-I, the apparent consideration has to be necessarily based on the market value concept, as far as Chapter IV is concerned, the capital gains herein has to be worked out, taking the full value of consideration received - a concept which is totally different from what is contemplated under Chapter XX-C. 12. Placing reliance on the decision of the Apex court reported in 66 ITR 622 - COMMISSIONER OF INCOME TAX AND ANOTHER v. GEORGE HENDERSON & CO. Placing reliance on the decision of the Apex court reported in 66 ITR 622 - COMMISSIONER OF INCOME TAX AND ANOTHER v. GEORGE HENDERSON & CO. LTD., on the scope of the phrase "full value of the consideration received" in Section 12-B of the 1922 Act, learned counsel for the assessee pointed out that even though the said decision was with reference to 1922 Act, yet, the phrase used under Section 48 being one and the same, the computation of capital gains has to be necessarily done in terms of Section 48 only. Hence, the attempt of the Revenue to adopt the apparent consideration as given under Section 269UA(b) of the Act, thereby, take the market value for the purpose of working out the capital gains, is contrary to law. He also referred to the decision of the Calcutta High Court reported in 207 ITR 743 - HARI KRISHNA KANOI v. APPROPRIATE AUTHORITY, which had explained about the Apparent Consideration in the case of development agreement. 13. Learned counsel for the assessee submitted that as far as the amount paid to the sisters are concerned, since the payment was as per the Clauses in the Will, the Tribunal committed a serious error in not excluding the said amount paid to the sisters towards their share in the property from the total consideration. 14. Countering the claim of the assessee and supporting the order of the Tribunal as well as the Assessing Officer, learned Standing counsel appearing for the Revenue submitted that when the assessee himself had only quoted the agreed consideration in Form 37-I at Rs.1,000/- per sq.ft., rightly, the Officer had taken the value as declared under Form 37-I as approved by the authority for the purpose of computing the capital gains. Hence, there is no error in the order of the Tribunal. In the circumstances, he prayed for dismissal of the Tax Case Appeal. 15. Heard learned counsel for the assessee as well as learned Standing Counsel for the Revenue and also perused the records placed before us. 16. Before going into the various aspects of the claim of the assessee, the provisions given under Chapter XX-C of the Income Tax Act defining 'Apparent Consideration', has to be noted. Section 269UA Chapter XX-C gives the definition of Apparent Consideration. 16. Before going into the various aspects of the claim of the assessee, the provisions given under Chapter XX-C of the Income Tax Act defining 'Apparent Consideration', has to be noted. Section 269UA Chapter XX-C gives the definition of Apparent Consideration. The said provision under Section 269UA(b) reads as follows:- "Apparent Consideration - In relation to any immovable property in respect of which an agreement for transfer is made, being immovable property of the nature referred to in sub clause (i) of clause (d) means - (i) if the immovable property is to be transferred by way of sale, the consideration for such transfer as specified in the agreement for transfer; (ii) if the immovable property is to be transferred by way of exchange- (A) in a case where the consideration for the transfer consists of a thing or things only, the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made; (B) in a case where the consideration for the transfer consists of a thing or things and a sum of money, the aggregate of the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made, and such sum; 17. Chapter XX-C of the Income Tax Act - "PURCHASE BY CENTRAL GOVERNMENT OF IMMOVABLE PROPERTIES IN CERTAIN CASES OF TRANSFER" comprising of Section 269U to 269UO, inserted by Finance Act, 1986 in the place of Chapter XX-A relating to pre-emptive purchase by the Central Government in certain cases of transfer of immovable properties under stated circumstances effected after 01.10.1986, thereby superseding the agreement entered into between the parties. The object of the Chapter is to prevent transfer of property which facilitates the passing of unaccounted money by under-stating the real consideration, as compared to the market value of the asset at the time of transfer. The provisions contained in Chapter XX-C makes it obligatory on the transferor and the transferee to register the details of the proposed transfer to the Appropriate Authority in the prescribed form. After satisfying itself that there is no under-statement of consideration in the agreement, under Section 269UD, an order is passed by the Appropriate Authority granting No Objection Certificate for the parties to execute the sale. After satisfying itself that there is no under-statement of consideration in the agreement, under Section 269UD, an order is passed by the Appropriate Authority granting No Objection Certificate for the parties to execute the sale. However, where the Appropriate Authority finds that what is declared in the agreement is not the apparent consideration, it is open to the Appropriate Authority to pass an order under Section 269UD, recording the reasons in writing, for the purchase of the immovable property at an amount equal to the amount of apparent consideration. The order has to be made within a period of two months from the end of the month in which the statement in respect of which immovable property is received by the Appropriate Authority. In the face of the order thus made, the property vests in the Central Government free from all encumbrances. Under Section 269UF, the Central Government has to pay by way of consideration for the purchase of the immovable property, an amount equal to the amount of apparent consideration. Thus a reading of the provisions shows that it enables the Government to step in only where the consideration for sale is not truly stated in the instrument of transfer and this has been done with a view to escape tax on the assessable income arising from the transfer or to help the transferee conceal his income, etc. 18. The entire concept on pre-emptive purchase rests on what is apparent consideration. 18. The entire concept on pre-emptive purchase rests on what is apparent consideration. Section 269UA(b) gives the definition of "Apparent Consideration" as follows: Section 269UA(b) in The Income- Tax Act, 1995 (b) " apparent consideration",- (1) in relation to any immovable property in respect of which an agreement for transfer is made, being immovable property of the nature referred to in sub- clause (i) of clause (d), means,- (i) if the immovable property is to be transferred by way of sale, the consideration for such transfer as specified in the agreement for transfer; (ii) if the immovable property is to be transferred by way of exchange,- (A) in a case where the consideration for the transfer consists of a thing or things only, the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made; (B) in a case where the consideration for the transfer consists of a thing or things and a sum of money, the aggregate of the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made, and such sum;, (iii) if the immovable property is to be transferred by way of lease,- (A) in a case where the consideration for the transfer consists of premium only the amount of premium as specified in the agreement for transfer; (B) in a case where the consideration for the transfer consists of rent only, the aggregate of the moneys (if any) payable by way of rent and the amounts for the service or things forming part of or constituting the rent, as specified in the agreement for transfer; (C) in a case where the consideration for the transfer consists of premium and rent, the aggregate of the amount of the premium, the moneys (if any) payable by way of rent and the amounts for the service or things forming part of or constituting the rent, as specified in the agreement for transfer, and where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement for transfer, the value of the consideration payable after such date shall be deemed to be the discounted value' of such consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf; (2) in relation to any immovable' property in respect of which an agreement for transfer is made, being immovable property of the nature refer- red to in sub- clause. (ii) of clause (d), means,- (i) in a case where the consideration for the transfer consists of a sum of money only, such sum; (ii)in a case where the consideration for the transfer consists of a thing or things only, the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made; (iii)in a case where the consideration for the transfer consists of a thing or things and a sum of money, the aggregate of the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made, and such sum, and where the whole or any part of the consideration for such transfer is payable on any date or dates falling after the date of such agreement for transfer, the value of the consideration payable after such date shall be deemed to be the discounted value' of such consideration, as on the date of such agreement for transfer, determined by adopting such rate of interest as may be prescribed in this behalf; " 19. Thus a reading of the above provision shows that in the case of outright sale of an immovable property, apparent consideration is the consideration stated in the agreement. In the case of transfer of immovable property by way of exchange, sub clause (A) states that the apparent consideration would be market price that such thing or things would ordinarily fetch on sale in the open market on the date of the agreement for transfer. In a case where immovable property is to be transferred for some money and thing or things as in this case herein by way of construction of flat or built up area to be given to the owner, namely assessee, the apparent consideration would be the open market price which the built up area would fetch, if ordinarily sold. In other words, in a case of joint development, the apparent consideration herein would have to be the cash plus the market value of the built up area, the value being the price that the built up area would fetch in an open sale. 20. Section 48 of the Income Tax Act pertains to mode of computation and deductions in respect of capital gains. 20. Section 48 of the Income Tax Act pertains to mode of computation and deductions in respect of capital gains. Section 48, as it stood during the relevant assessment year, reads as follows: - "48. Mode of computation and deductions- (1) The income chargeable under the head "Capital gains" shall be computed, - (a) by deducting from the full value of the consideration received or acquiring as a result of the transfer of the capital asset the following amounts, namely:- (i) expenditure incurred wholly and exclusively in connection with such transfer ; (ii) the cost of acquisition of the asset and the cost of any improvement thereto : (b) where the capital gain arises from the transfer of a long-term capital asset (hereafter in this section referred to, respectively, as long-term capital gain and long-term capital asset) by making the further deductions specified in sub-section (2). " 21. A reading of the above-said provision in Section 48 shows that the computation of income for capital gains is made with reference to the full value of the consideration received or accruing as a result of a transfer of the capital asset, after deducting the expenditure incurred thereon. The expression "full value of the consideration received or accruing as a result of the transfer of capital asset", however, is not understood as the market value, but the full price bargained for. "Fair Market price" is defined under Section 2(22B), as follows: "(22B) Fair market value", in relation to a capital, means-- (i) the price that the capital asset would ordinarily fetch on sale in the open market on the relevant date; and (ii) where the price referred to in sub-clause (i) is not ascertainable, such price as may be determined in accordance with the rules made under this Act; " 22. Thus in contradistinction to "market value", when Section 48 uses the phrase "the full value of consideration received or accrued", it stands to reason that what Section 48 seeks to look at for the purpose of computation of capital gains, is the receipt of full value of the consideration only. Thus in contradistinction to "market value", when Section 48 uses the phrase "the full value of consideration received or accrued", it stands to reason that what Section 48 seeks to look at for the purpose of computation of capital gains, is the receipt of full value of the consideration only. In so computing, the Section is not concerned with adopting any value other than the consideration received, or for that matter, the Assessing Officer has to look at a value beyond what is given as full value of the consideration for the purpose of any comparative analysis to arrive at the capital gains. Section 52 "Consideration for transfer in cases of under-statement", which was there in the statute book to deal with cases of under-statement of consideration for transfer, which enabled the Income Tax Officer to ignore the sale price and adopt the market value of the property for the purpose of computing the capital gains and hence operated as an exception to Section 48, was omitted from the statute book under the Finance Act, 1987 (Act 11 of 1987) with effect from 1.4.1988. Thus, after the deletion of Section 52 with effect from 1988-89, it is not possible for the Assessing Officer to adopt the market value or any value other than the consideration received or accrued for computing the capital gains. 23. It may be of relevance to note that Section 50C "Special Provision for full value of consideration in certain cases" was inserted by the Finance Act, 2002 only to operate prospectively with effect from 2003-04 to tackle the unaccounted income by the practice of under-statement of consideration in acquisition of property in case of transfer of immovable property. Thus, with effect from 1.4.2003, provision is available under Section 50-C for determining the full value of consideration in cases of transfer of immovable property by enabling the Officer to refer the valuation of a capital asset to a Valuation Officer if the fair market value determined by the Valuation Officer is less than the value adopted for stamp duty purpose. The Officer may take such fair market value to be the full value of consideration. If the fair market value determined by the Valuation Officer is more than the value adopted or assessed for stamp duty purpose, the Officer shall take the full value of consideration to be the value adopted or assessed for stamp duty purpose. The Officer may take such fair market value to be the full value of consideration. If the fair market value determined by the Valuation Officer is more than the value adopted or assessed for stamp duty purpose, the Officer shall take the full value of consideration to be the value adopted or assessed for stamp duty purpose. Thus, Section 50-C substitutes a statutory value in the place of the apparent consideration specified in the document. The said provisions are available on and from the assessment year 2003-2004. Section 55-A, inserted by T.L Amended Act, 1972 with effect from 01.01.1973, enables the Assessing Officer to refer valuation of the relevant asset to the Valuation Officer for the purpose of ascertaining the fair market value of a capital asset for the purpose of Chapter IV sub Chapter E capital gains. In the absence of any material to adopt the market value as the basis for computation, the capital gains has to be computed from the full value of the consideration received or accruing as a result of the transfer of capital asset. Thus, going by the provision relevant to the assessment year under consideration, namely, 1988-89, while for purposes of computation of capital gains, the full value of the consideration received or accruing as given under Section 48 alone is the criteria, in contradistinction, under Chapter XX-C, it is the apparent consideration namely, the market price, which is the relevant fact to be considered as to whether there was under-statement. Thus when the Act has adopted two different concepts consciously, one by way of "full value of consideration" as the basis for computing capital gains and "market value" for application of Chapter XX-C, one cannot lose sight of the above-said difference in the language of the Sections, particularly in the context of the object of Chapter XX-C and import the said concept in the application of Section 48. The mere fact that the transaction had been a subject matter of consideration under Chapter XX-C particularly with reference to the apparent consideration, does not, in any manner, justify the adoption of market price concept in the working of capital gains under Section 48. 24. Chapter XX-C essentially is a measure to check evasion of tax caused by under-quoting of the sale consideration. 24. Chapter XX-C essentially is a measure to check evasion of tax caused by under-quoting of the sale consideration. When the State made a provision under Chapter XX-C that every transfer of property above the value of Rs.10 lakhs at the relevant point of time at Rs.5 lakhs had to go before the Appropriate Authority for clearance, it provided for market value as the touchstone for passing an order on the instrument of transfer. Thus going by the conceptional difference between Section 48 and Chapter XX-C, going by the wordings under Section 269UA(b) and Section 269UD on the one hand and Section 49 on the other, in the absence of any provision available therein to adopt the market value in computing the capital gains under Section 48, we have no hesitation in holding that the concept available for Chapter XX-C can have no application at all, while working out the computation under section 48 of the Act. 25. In this connection, the reliance placed by the learned counsel for the assessee on the decision reported in 66 ITR 622 - COMMISSIONER OF INCOME TAX & ANR. v. GEORGE HENDERSON CO. LTD. has to be seen. The said decision relates to interpretation of Section 12B of the Income Tax Act, 1922, corresponding to Section 48 of the 1961 Act, which dealt with the capital gains thereon. The Supreme court pointed out therein "the expression on full value of the consideration" as appearing in Section 12B could not be construed as having a reference to the market value of the asset transferred; the expression meant only the full value of consideration received by the transferor in exchange for the capital asset transferred by him. The Supreme Court held that "the consideration for the transfer is the thing received by the transferor in exchange for the asset transferred and it is not right to say that the asset transferred and parted with is itself the consideration for the transfer. " Referring to the language difference in Section 12B(2) and the first proviso to Section 12B(2), the Supreme Court further observed as follows: "The main part of s. 12B(2) provides that the amount of a capital gain shall be computed after making certain deductions from the "full value of the consideration for which the sale, exchange or transfer of the capital asset is made". In case of a sale, the full value of the consideration is the full sale price actually paid. The legislature had to use the words "full value of the consideration" because it was dealing not merely with sale but with other types of transfer, such as exchange, where the consideration would be other than money. If it is therefore held in the present case that the actual price received by the respondent was at the rate of Rs.136 per share the full value of the consideration must be taken at the rate of Rs.136 per share. The view that we have expressed as to the interpretation of the main part of s. 12B(2) is borne out by the fact that in the first proviso to s. 12B(2) the expression "full value of the consideration" is used in contradistinction with "fair market value of the capital asset" and there is an express power granted to the ITO to "take the fair market value of the capital asset transferred" as "the full value of the consideration" in specified circumstances. It is evident that the legislature itself has made a distinction between the two expressions "full value of the consideration" and "fair market value of the capital asset transferred" and it is provided that if certain conditions are satisfied as mentioned in the first proviso to s. 12B(2), the market value of the asset transferred, though not equivalent to the full value of the consideration for the transfer, may be deemed to be the full value of the consideration. " 26. Thus in the context of the judicial interpretation of the phrase 'full value of consideration' a phrase retained in Section 48 of 1961 Act too, it is difficult to accept the argument of the Revenue that the apparent consideration, meaning thereby the market value, as given under Form 37-I for the purpose of clearance under Chapter XX-C alone could be treated as the full value of the consideration. 27. 27. Given the fact that the apparent consideration defined as market value as defined in Section 269UA is of limited relevance only for the purpose of proceedings under Chapter XX-C and it has no relevance for computing the capital gains as given under Section 48 of the Act and in the absence of any provision to adopt the value as given under Form 37-I for the purpose of computing the capital gains under Section 48, we have no hesitation in accepting the case of the assessee that the Tribunal as well as the Assessing Authority fell into grievous error in construing Section 48 of the Act viz., "full value of consideration" received to mean "apparent consideration" as given in Chapter XX C. 28. Learned Standing counsel appearing for the Revenue relied on the decision of this Court reported in 139 ITR 736 - SANGAMESWAR COFFEE ESTATES LTD. v. C.I.T. as regards the phrase "full value of consideration". We do not think the reliance by the Revenue is well placed. The case therein related to sale of 200 standing rose wood trees for a total consideration of Rs.7,25,000/-. The purchaser therein felled and removed as many as 150 trees during the Accounting Year ending 31.3.1971 and paid the assessee company, a sum of Rs.6,25,000/-. In the returns filed, the assessee showed a sum of Rs.6,25,000/- alone in computing the capital gains. The Income Tax Officer rejected the same and computed the capital gains on the entire sale proceedings of Rs.7,25,000/-, since, as per the terms of the agreement dated 15.7.1970, the sale of the trees must be held to have taken place and the capital gains should be taxed on the entire sale consideration. On a reference before this Court, it was held that the entirety of the consideration named in the agreement of sale must be regarded as forming full value of the consideration for sale. It rejected the plea of the assessee taken that as there was sale of 150 trees only out of 200 trees agreed for and that the assessee had received Rs.6,25,000/- alone out of the total consideration of Rs.7,25,000/-, the capital gains had to be worked only on Rs.6,25,000/-. It rejected the plea of the assessee taken that as there was sale of 150 trees only out of 200 trees agreed for and that the assessee had received Rs.6,25,000/- alone out of the total consideration of Rs.7,25,000/-, the capital gains had to be worked only on Rs.6,25,000/-. On the terms of the contract between the parties, this Court held that when the parties had specified the number of trees, their location and the responsibilities of both parties to get the clearance from the Government for felling the rosewood trees, it followed that the entirety of the sale consideration under the agreement must be regarded as forming the full value of the consideration of sale for taxing the capital gains. Going by the facts herein, the said decision would not be of any assistance to the Revenue. 29. Going by the facts and provisions of Section 48 and Chapter XX-C, we accept the plea of the assessee that the computation of capital gains has to be made on the basis of the full consideration received by the assessee as provided under Section 48 only. Consequently, we set aside the order of the Tribunal as far as the computation of capital gains is concerned. 30. As regards the cost of construction as fixed by the Commissioner of Income Tax (Appeals) is concerned, the same is based on the evaluation given by the assessee. The parties to the agreement originally agreed that the contractor would put up construction of 36,000 sq.ft for the assessee. Subsequently, the said area got reduced to 28302 sq.ft. by reason of FSI reduction to 2 from 2.5. In Form 37-I, the assessee showed the rate for construction at Rs.1000 per sq.ft. Thus deducting the value of six grounds pro rata to the built up area at Rs.1,52,54,510/-, the net figure includible was Rs.1,30,47,490/-. The Tribunal held that the value at Rs.200/- as given under Clause 32 of the agreement would be inapplicable to the assessee on account of the approval given by the Assessing Authority. However, considering the reduction in the area and rejecting the value adopted by the Commissioner of Income Tax, the Tribunal fixed it at Rs.576 per sq.ft. The Tribunal held that the value at Rs.200/- as given under Clause 32 of the agreement would be inapplicable to the assessee on account of the approval given by the Assessing Authority. However, considering the reduction in the area and rejecting the value adopted by the Commissioner of Income Tax, the Tribunal fixed it at Rs.576 per sq.ft. It is a matter of relevance to note that even in the development agreement, the parties had agreed that the cost of construction, to be assigned to the portion to be built by the developer for the assessee as part of the agreement, was to work out the cost without including the profit on the materials used. That being the case, in the absence of any other materials for the Revenue to dispute on the value adopted by the Commissioner of Income Tax (Appeals), we have no hesitation in accepting the value as given by Commissioner of Income Tax (Appeals) as regards the cost of construction, which the parties agreed as part of the full value of consideration received by the assessee. 31. The Commissioner of Income Tax (Appeals) accepted the contention of the assessee as to the cost supported by the certificate from the builder that the basement of the complex comprised of a car park and the owner would not be entitled to any share therein as per the agreement dated 27.09.1997. The total actual area excluding the basement came to 96313 sq.ft. Thus going by the constructed area allotted to the assessee at 28302 sq.ft. in the first floor, the Commissioner of Income Tax (Appeals) upheld the assessee's contention. 32. As regards the payment made by the assessee to the sisters, the Commissioner of Income Tax (Appeals) rightly pointed out that the Will reserved the right of the assessee to pay either Rs.1 lakh each to his sisters or 10% of the property to each of the sisters. The relevant part of the Will which is extracted by the Commissioner of Income Tax (Appeals) reads as follows:- "I make a special proviso that instead of the 500 sq.ft. of land to be given to each of my three daughters (subject to the cantonment Secundrabad not taking over the extra lands under the Land Urban Ceiling) if he so desirous give each daughter Rs.1,00,000/-instead of the land. of land to be given to each of my three daughters (subject to the cantonment Secundrabad not taking over the extra lands under the Land Urban Ceiling) if he so desirous give each daughter Rs.1,00,000/-instead of the land. Similarly, my son can pay Rs.1,00,000/- to each of my three daughters instead of 10% share in Wellington properties. The choice is left to my son and the daughters will not question my son's decision." 33. The agreement entered into between the assessee, his mother and his sisters dated 18th May 1986, reads as follows:. ".......... 7. As per the Will of the late Mr.J.D. Italia, the three daughters namely the second, third and fifth parties of the presents are each entitled to the value of 10 percent of the late Mr.J.D. Italia's share in the property known as 'Wellington Talkies' situated at Mount Road, Madras or Rs.1,00,000/- (Rupees one lakh only) each at the discretion of the Fourth party. The Fourth party after examining the possibilities of development of the property has decided to give Rs.6,00,000/- (Rupees six lakhs only) to each of the Second, Third and Fifth parties in the event of development. The Fourth party further agrees to pay a sum of Rs.1,00,000/- (Rupees one lakh only) each if the Second, Third and Fifth parties to these presents want immediate payment if they are unwilling to wait until the development of the property. The option on this matter is left to the discretion of the Second, Third and Fifth parties of these presents. 8. The Second, Third and Fifth Parties hereby declare that they have no claim whatsoever on the property known as 'Wellington Talkies' situated at Mount Road, Madras in view of the Clause 7 Supra. It is hereby mutually agreed that until such time the amount is paid pursuant to the provisions contained in Clause 7 Supra, 30 percent of the net property income of the late Mr.J.D. Italia's share in the property would be equally distributed amongst the Second, Third and Fifth parties. ......" 34. It is hereby mutually agreed that until such time the amount is paid pursuant to the provisions contained in Clause 7 Supra, 30 percent of the net property income of the late Mr.J.D. Italia's share in the property would be equally distributed amongst the Second, Third and Fifth parties. ......" 34. Going by the said Clause therein, read in the context of the agreement entered into between the assessee, his mother and three sisters, wherein the parties had agreed that the assessee had to pay Rs.6 lakhs to each of his sisters, we have no hesitation in agreeing with the Tribunal in holding that the payment was not, in any manner, relatable to the rights already there in the property. Going by the Clause in the Will and in the agreement, we do not find any good ground to differ from the view of the Tribunal. Consequently, we confirm the order of the Tribunal. 35. In the result, as far as the computation of capital gains is concerned, we set aside the order of the Tribunal and allow the assessee's appeal. As far as the claim for deduction in respect of the money paid to the assessee's sisters is concerned, the order of the Tribunal stands confirmed. No costs.