JUDGMENT : M.R. Shah, J. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to hold that the computation of capital gain made by the respondent no.1 - Income Tax Settlement Commission (hereinafter referred to as the "Settlement Commission") in its order under Section 245D(4) of the Income Tax Act by enhancing the sale consideration as well as reducing the cost of acquisition/market value as at 1st April 1981 for the transfer of land be quashed and be substituted by the figure submitted by the petitioners in its application u/s 245C(1) and computation of capital gains may be directed to be revised accordingly. 2. The facts leading to the present Special Civil Application in nutshell are as under: 2.1. That the petitioners herein - original applicants belonged to one "Khodaji Group", Ahmedabad. All of them have filed the Settlement Application under Section 245C(1) of the Income Tax Act, 1961 (hereinafter referred to as the "Act") before the Settlement Commission on 02.02.2015, offering the additional income for the various assessment years, as under:- Sr. No. Name of the applicant Assessment years for which applications for Settlement have been filed Total additional income offered 1 Khodaji M Thakor 2007-08 to 2013-14 2,74,50,000/- 2 Shakriben Thakor 2007-08 to 2013-14 2,57,00,000/- 3 Gajraben Thakor 2007-08 to 2013-14 2,57,00,000/- 4 Hiraben Chauhan 2007-08 to 2013-14 2,57,00,000/- 5 Bhanuben Rathod 2007-08 to 2013-14 2,57,00,000/- Total 13,02,50,000/- 2.2. It was stated in the Statement of Facts (hereinafter referred to as "SOF") as under: (I) That search and seizer action was carried out by the Income Tax Department in the cases of all the five applicants on 03.01.2013. During the course of the search, cash amounting to Rs. 50,69,150/- was found in possession of the above five applicants, out of which, case amounting to Rs. 44,00,000/- was seized by the Department in the cases of Shri Khodaji M Thakor, Smt. Shakriben Tahkor and Smt. Gajraben Thakor. The details of the cash found and seized from the various premises is as below:- Sr. 50,69,150/- was found in possession of the above five applicants, out of which, case amounting to Rs. 44,00,000/- was seized by the Department in the cases of Shri Khodaji M Thakor, Smt. Shakriben Tahkor and Smt. Gajraben Thakor. The details of the cash found and seized from the various premises is as below:- Sr. No. Name of the person Premises from where cash found Cash Found (Rs.) Cash Seized (Rs.) 1 Khodaji M. Thakor Pagi Vas, Vejalpur, Ahmedabad 28,81,530/- 25,00,000/- 2 Shakriben S. Thakor & Shankarlal Thakor Nano Rabari Vas, B/h Divani Court, Dholka 16,50,500/- 15,00,000/- 3 Gajraben B. Thakor Nano Rabari Vas, B/h Divani Court, Dholka 4,91,000/- 4,00,000/- 4 Hiraben M. Chauhan Matrukrupa, Thakorvas, Kathvada, Tal & Dist. Kheda 3000/- 5 Bhanuben N Rathod B-7, Chandlodiya Railway Quarters, Chandlodiya, Ahmedabad 43120/- Total 50,69,150/- 44,00,000/- Further, during the course of the search, goods and other valuable articles worth Rs. 53,86,520/- were also found in the various premises of these applicants, out of which 500 Gms of Gold articles, worth Rs. 15,62,500/- were seized from the premises of Smt. Shakriben S Thakor. The relevant details in this regard have been mentioned at page 12 of the settlement application in the case of Shri Khodaji M Thakor. (II) During the course of search proceedings, the settlements of the applicants and their family members were recorded u/s 132(4) of the I.T. Act. In the SOR the details of such statements taken are given as below:- Sr. No. Name of the person Section under which statement is recorded Date Exhibit No. in the SOF 1 Shri Khodaji Mafatji Thakor 132(4) 03.01.2013 1 9 2 Shri Bhanuben Natvarbhai Rathod 132(4) 03.01.2013 2 0 3 Smt. Gajraben Budhaji Thakor 132(4) 03.01.2013 2 1 4 Smt. Hiraben Maganbhai Chauhan 132(4) 03.01.2013 2 2 5 Smt. Sakriben S Thakor 132(4) 03.01.2013 2 3 6 Shri Yogesh Khodaji Thakor 132(4) 03.01.2013 2 4 7 Shri Yogesh Khodaji Thakor 132(4) 03.01.2013 2 5 It is further stated in the SOF that no disclosure of the additional income was made by the applicants in their statements recorded u/s 132(4). However, it was assured by Yogesh Thakor that capital gains arising out of the sale of land will be offered to tax. (III) All the five applicants are relatives. Shri Khodaji M Thakor, being the brother to the rest of the four applicants (supra). However, it was assured by Yogesh Thakor that capital gains arising out of the sale of land will be offered to tax. (III) All the five applicants are relatives. Shri Khodaji M Thakor, being the brother to the rest of the four applicants (supra). All the five applicants were owing agricultural lands being survey no. 1273 and 1274 at Vejalpur, Ahmedabad, admeasuring 7082 sq mtr and 24888 sq mtr aggregating to 31970 sq mtr which was acquired by their father before 1.4.1981. Each applicant had equal share in the above lands. The land was agriculture land till it was converted to non agriculture land on 23.02.2012. On conversion of the said land into non agriculture land the land size of the plot of survey no.1273 and 1274 was reduced to 4249 sq mtr and 14144 sq mtr aggregating to 18393 sq mtrs. The applicants had sold the land to Dev Procon Ltd On 24.02.2012. (IV) The applicants submit that the Income Tax Department has found and seized during search Memorandum of Understanding (hereinafter referred to "MOU-1") in respect of land bearing survey no. 1273 and 1274 at Vejalpur, Ahmedabad from the residence of Shakriben S Thakor. Simultaneously another Memorandum of Understanding (hereinafter referred to "MOU-2") in respect of land using Survey No.1273 and 1274 at Vejalpur, Ahmedabad was found from Dev House, SG Highway on 03.01.2013. 2.3. It was further contended in the SOF as under: A. The MOU-1 has been executed on 10.02.2011 between Shri Rajendra Shankarlal Thakor (a son of Shakriben S Thakor) and Shri Ashwin D Patel and Others. As per SOF even though Rajendra Thakor has signed on MOU-1 but his name does not appear among the names of sellers. The space is left blank too. It indicated that MOU-1 was written without consent of or discussion with Rajendra Shankarlal Thakor who, it appears, was subsequently persuaded to sign the MoU-1. It shows that there was some act of conspiracy in drafting the MoU-1, as otherwise, the name of Rajendra Shakarlal Thakor should have been appropriately written as seller (refer page no.2 of MoU-1). B. The proposed parties of the Second Part (alleged sellers) in the MoU-1 are (1) Thakor Rajeshbhai Shyamlal, (2) Blank, (3) Patel Mukeshbhai Jagubhai. Neither of the two parties viz. Rajeshbhai Shyamlal and Mukeshbhai have any locus standi to enter into any agreement to sell the land of the applicants. B. The proposed parties of the Second Part (alleged sellers) in the MoU-1 are (1) Thakor Rajeshbhai Shyamlal, (2) Blank, (3) Patel Mukeshbhai Jagubhai. Neither of the two parties viz. Rajeshbhai Shyamlal and Mukeshbhai have any locus standi to enter into any agreement to sell the land of the applicants. None of them are known to the applicants and none of them are authorized to sell the land. It is only a unilateal act of Ashwin Patel/ Manshukh Patel to employee the due to draft the agreements. In view of this the MoU-1 is a legally unsustainable document. C. This MoU-1 was found in the search from the possession of Smt. Shakriben, mother of Rajendra Shankarlal Thakor. D. Shri Rajendra Shankarlal Thakor has acted as power of attorney holder to do acts in respect to the sale of property on behalf of the three co-owners namely, Smt. Gajaraben Thakor, Smt. Hiraben Thakor and Smt. Shakriben Thakor. E. The rate which has been mentioned in the MoU-1 at which the land would be sold is Rs. 77,001 per sq yards to Shri Ashwin D Patel and Others. F. As a part of total sales consideration Rs. 1,00,00,000/- is to be paid as token amount in cash. G. The responsibility of settling all the disputes and litigation connected with the said land would be on the land owners i.e. applicants. 2.4. Now, so far as MoU-2 is concerned, it was stated in the SOF as under: A. The MoU-2 has also been executed on 10.02.2011 between Yogesh K Thakor and Shri Ashwin D Patel and Others. B. Shri Yogesh K Thakor was not authorized to enter into any negotiation to sell the land as he has no locus standi to enter into agreement. C. The rate which has been mentioned in the MoU-2 at which the land would be sold is Rs. 52,001 per sq. yards to Shri Ashwin D Patel and Others. D. As a part of total sales consideration Rs. 1,00,00,000/- is to be paid as token amount in cash to Shri Yogesh Thakor. E. The responsibility of settling all the disputes and litigation connected with the said land would be on the buyer of the land. 2.5. The relevant particulars of MoU-1 and MoU-2 in the form of statement are as under:- Sr. 1,00,00,000/- is to be paid as token amount in cash to Shri Yogesh Thakor. E. The responsibility of settling all the disputes and litigation connected with the said land would be on the buyer of the land. 2.5. The relevant particulars of MoU-1 and MoU-2 in the form of statement are as under:- Sr. No. Particulars MOU-1 MOU-2 1 Place from where the MoU is seized Shakriben S Thakor Residence Dev house, Ahmedabad. 2 Seized material Reference Page No.29-38 of Annexure-A Page No.8-16 of Annexure A9 3 Date of MoU 10.02.2011 10.02.2011 4 Land at S.No.1273 & 1274 at Mauje: Vejalpur, Dist. Ahmedabad S.No.1273 & 1274 at Mauje: Vejalpur, Dist. Ahmedabad 5 Area (Sq mtr) 18,393 18,393 6 Proposed parties of the First Part (alleged purchaser) Ashwin D Patel and Mansukh N Patel Ashwin D Patel and Mansukh N Patel 7 Proposed parties of Second Part (alleged Sellers) Rajesh Shamlal Thakore + blank + Mukesh Jagubhai Yogesh K Thakor 8 Rate sq yard 77,001/- 52001/- 9 Power of Attorney Given by Shakriben Thakor, Gajaraben Thakor and Hiraben Thakor in favour of Rajendra Thakor NIL 10 Responsibility of settling the disputes With the Sellers With Land Buyers. 2.6. It was submitted in the SOF by the applicants that aforesaid two MoUs remained only pieces of papers for the owners/applicants as they were never acted as apparently they were not written with bona fide intentions. They were unreliable, unrealistic and therefore, bad in law. Number of submissions were stated in the SOF that as recorded by the learned Settlement Commission in the paragraph 4, of the impugned order. 2.7. It was also the case on behalf of the applicants that as the land could not be transferred in terms of the MoU as those terms were not acted upon beyond limitation therein had expired, the applicants shall free to sell the land at the available market price to the willing buyer. It was also the case on behalf of the petitioners- original applicants that price quoted in the MoU's do not reflect the market price. 2.8. It was also further submitted in the SOF that during the course of search neither any incriminating material nor any unaccounted cash or asset was found by the department. It was further submitted that even department during the course of recording of the statement it is not alleged that sale transaction of survey nos. 2.8. It was also further submitted in the SOF that during the course of search neither any incriminating material nor any unaccounted cash or asset was found by the department. It was further submitted that even department during the course of recording of the statement it is not alleged that sale transaction of survey nos. 1273 and 1274 was below the circle rates. It was further submitted that there is no material to suggest that the applicant and the co-owners received amount in excess of what has been stated in the conveyance deed. It was submitted that if the department intends to tax any amount in terms of the said MoU, it is incumbent upon them to bring on record any evidence or material to support the gains. It was submitted that therefore, there is no option with the AO to recompute the capital gains by substituting the estimated sale consideration in place of actually stated sale consideration in the conveyance deed by ignoring or by passing the provisions of Section 50C. 2.9. It was further submitted that land bearing survey nos.1273 and 1274 were sold to Dev Procon Ltd by the applicants as per market price and considering facts and circumstances of the case. It was submitted that the said land was sold after getting converted from agriculture purpose to non agriculture purpose and thereafter it was sold for the total consideration of Rs. 81,50,00,000/- on 24.02.2012 by executing a registered conveyance deed. That each applicant was entitled to receive total consideration of Rs. 16,30,00,000/-. It was the case on behalf of the petitioners - original applicants in their applications that worked out capital gains based on sale consideration at Rs. 81,50,00,000/- as per the conveyance deed. That the adopted indexed cost of acquisition as on 1.4.1981 at Rs. 60,23,14,800/- on the basis of report of the valuer Mr. P.K. Desai. 2.10. That all the applications under Section 245C(1) of the Act were processed and admitted and further allowed to be proceeded that vide order under Section 245D(1) dated 09.02.2015. The applicants were held not to be "invalid" vide order under Section 245D(2C) dated 19.03.2015. That thereafter, a report was called for from the Commissioner. The learned CIT(A)- Central Ahmedabad vide letter dated 18.05.2015 and 21.05.2015 submitted the report under Rule 9. The applicants were held not to be "invalid" vide order under Section 245D(2C) dated 19.03.2015. That thereafter, a report was called for from the Commissioner. The learned CIT(A)- Central Ahmedabad vide letter dated 18.05.2015 and 21.05.2015 submitted the report under Rule 9. It was contended that Dev Group had purchased a huge piece of land in February-2012 at very prominent location i.e. Prahald Nagar, Vejalpur, Ahmedabad for its Dev Aurum Project from owners of land i.e. the applicants vide registered sale deed dated 24.02.2012 at Rs. 81.50 Crores while actual price at which the deal was finalized is Rs. 176 crores. The elaborate submissions were made in the report not to accept the valuation/sale consideration mentioned in the sale deed, as recorded in detailed in para 5.1 to 5.3 of the impugned order. 2.11. That the applicants submitted its reply to the report under Rule 9. That thereafter, after considering the material on record and different valuation shown in the two different MoU's and the statement of Yogesh Khodaji Thakor recorded during the search under Section 132(4) and after having noted that and on appreciation of evidence both oral and the documentary evidence, Settlement Commission concluded that sale consideration of NA land of the applicants admeasuring 22000 sq yard to Dev Procon Limited after clearing the disputes and litigations in respect of the said land is less by Rs. 60 crores from the sale value at the rate of Rs. 80000/- per sq yard (with the disputes and litigation). Consequently, the learned Settlement Commission determined sale consideration of Vejalpur land by the applicants to Dev Procon Ltd. which is to be computed on the above sale consideration of Rs. 116,00,96,000/- in place of the total consideration claimed by the PCIT of Rs. 176,00,96,000/-. The learned Settlement Commission consequently finalizing settlement proceedings accordingly by calculating and determining the capital gains at Rs. 1,01,40,53,069/-, as under:- Sr. No. Name of the owner Capital gain w.r.t. total consideration (1) (2) (3) 1 Shri Khodaji Mafatji Thakor 20,28,10,613/- 2 Shri Shakriben Thakor 20,28,10,613/- 3 Shri Bhanuben N Rathod 20,28,10,613/- 4 Shri Hiraben M Chauhan 20,28,10,613/ 5 Shri Gajaraben B Thakor 20,28,10,613/- 2.12. 1,01,40,53,069/-, as under:- Sr. No. Name of the owner Capital gain w.r.t. total consideration (1) (2) (3) 1 Shri Khodaji Mafatji Thakor 20,28,10,613/- 2 Shri Shakriben Thakor 20,28,10,613/- 3 Shri Bhanuben N Rathod 20,28,10,613/- 4 Shri Hiraben M Chauhan 20,28,10,613/ 5 Shri Gajaraben B Thakor 20,28,10,613/- 2.12. At this juncture, it is required to be noted that out of three members one Member dissented and gave its dissenting finding and did not agree with findings recorded by other two members on the reliance placed on MoU-1 and MoU-2 and the statement of Smt. Sakriben Thakore, Shri Yogesh Thakor and Ashwin Patel. Therefore, Commission passed impugned decision/ order by majority. 2.13. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Settlement Commission passed under Section 245D(4) of the Act, the petitioners have preferred present petition under Article 226 of the Constitution of India. 3. Shri S.N. Soparkar, learned Senior Advocate has appeared on behalf of the petitioner and Shri M.R. Bhatt, learned Senior Advocate has appeared on behalf of the Revenue. 4. Shri S.N. Soparkar, learned counsel for the petitioners has vehemently submitted that the impugned order passed by the learned Settlement Commission is bad in law and on the basis of surmises and conjectures, which deserves to be quashed and set aside. 4.1. Shri S.N. Soparkar, learned counsel for the petitioners has vehemently submitted that in the impugned order, the learned Settlement Commission has assumed that without there being any material on record, just on the basis of surmises and conjectures, that the petitioners have received "on money" of Rs. 34,50,96,000/- on sale of land by further assuming that the land was sold at a consideration of Rs. 1,76,00,96,000/- as against the actual consideration of Rs. 81.50 crores recorded in the conveyance deed. 4.2. It is further submitted that the learned Settlement Commission has materially erred in presuming that the purchasers Dev Procon Ltd., must have paid/incurred a sum of Rs. 60 crores on litigation to clear the land from various disputes and thus would have paid to the petitioners balanced amount of Rs. 1,16,00,96,000/-. It is submitted that therefore, the learned Settlement Commission has materially erred in calculating the capital gain on the basis of such assumed consideration received by the petitioners at Rs. 1,16,00,96,000/-. 4.3. 60 crores on litigation to clear the land from various disputes and thus would have paid to the petitioners balanced amount of Rs. 1,16,00,96,000/-. It is submitted that therefore, the learned Settlement Commission has materially erred in calculating the capital gain on the basis of such assumed consideration received by the petitioners at Rs. 1,16,00,96,000/-. 4.3. It is further submitted by Shri Soparkar, learned counsel for the petitioners that as such the petitioners in their applications worked out capital gains based on the sale consideration of Rs. 81.50 crores as per the conveyance deed and adopted indexed cost of acquisition as on 1.4.1981 at Rs. 60,23,14,800/- on the basis of report of the valuer Shri P.K. Desai. 4.4. Shri S.N. Soparkar, learned counsel for the petitioners has vehemently submitted that the learned Settlement Commission has erred in ignoring the indexed cost of acquisition declared by the petitioners and adopted fair market value of the land as on 1.4.1981 on the basis of the valuation report of another valuer Shri Alpesh Patel who were given fair market value at Rs. 1,85,42,620/-. It is submitted that as such said report was found at the premises of Dev House, SG Highway, Ahmedabad during the search and seizer operation. It is submitted that though number of defects in the report of Shri Alpesh Patel were pointed to the petitioners, the learned Settlement Commission has not considered the same. 4.5. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that as such Settlement Commission has replaced the sale consideration of Rs. 81.50 crores recorded in the instrument of transfer of Rs. 176 Crores arrived on the basis of price calculated at the rate of Rs. 80,000 per sq yard by adding Rs. 3000 per sq yard in the proposed rate mentioned in MoU 1 at Rs. 77001 per sq. yard and by adopting market value as on 1.4.1981 at Rs. 1.85 crore before indexation on the basis of valuation report of Shri Alpesh Patel which had many defects. It is submitted that therefore, learned Settlement Commission has materially erred in calculating capital gains accordingly at Rs. 1,01,40,53,069/- as against Rs. 16,41,14,529/- declared by the petitioners. 4.6. 77001 per sq. yard and by adopting market value as on 1.4.1981 at Rs. 1.85 crore before indexation on the basis of valuation report of Shri Alpesh Patel which had many defects. It is submitted that therefore, learned Settlement Commission has materially erred in calculating capital gains accordingly at Rs. 1,01,40,53,069/- as against Rs. 16,41,14,529/- declared by the petitioners. 4.6. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that as such the impugned order under Section 245 D(4) has been passed by the Settlement Commission by majority of 2 to 1. It is submitted that one Member has taken a dissenting view and has held that stated sale consideration in the instrument of transfer cannot be replaced by estimated sale consideration as worked out by majority members. It is submitted that as such cogent reasons have been given by the third Member in his dissenting view. 4.7. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that as such learned Settlement Commission has materially erred in considering the value/sale consideration stated in to MoU's. It is submitted that the learned Settlement Commission has materially erred in inferring that two MoU's were executed by/at the behest of the petitioners. It is submitted that neither any evidence to this effect has been found in the search or produced by the department nor referred to by the Settlement Commission. It is submitted that the petitioners are neither witness nor confirming parties to the said two MoU's. It is submitted that in none of the statement referred to by the Settlement Commission in its order under Section 245D(4) there is any indication that the petitioners have confirmed the two MoU's. It is submitted that merely because MoU 1 was found from the premises of Shakriben, it cannot be inferred that the MoU-1 was executed by her or it was executed at her behest. 4.8. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that even if it is presumed that Shri Rajendrabhai Thakor son of Shakriben had an authority given by three of the petitioners, it cannot be inferred that it was executed at the behest of rest of other two petitioners/co-owners. 4.9. 4.8. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that even if it is presumed that Shri Rajendrabhai Thakor son of Shakriben had an authority given by three of the petitioners, it cannot be inferred that it was executed at the behest of rest of other two petitioners/co-owners. 4.9. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that as such the learned Settlement Commission has not considered in proper prospective the submission of the petitioners that the two MoU's are unrealistic and legally not enforceable in a Court of law. 4.10. It is further submitted by Shri S.N. Soparkar, learned counsel for the petitioners that learned Settlement Commission has not properly appreciated and/or considered the following submissions made before the Commission on the MoU-1 and MoU-2. (1) That both MoU's for the same land were executed on the same date with two different sellers with different terms and conditions whereas the proposed purchasers i.e. Ashwin Patel and Mansukh Patel in the two MoU's were the same, Shri Yogesh Thakor the proposed seller in MoU 2 has no authority to sell the land; (2) That two proposed sellers in MoU 1 had no right in the land; (3) One of the common purchaser in the two MoU's had in the affidavit before the District Collector, Ahmedabad declare that no agreement to sale these two lands has been executed, no actual action was ever taken by the proposed purchasers to purchase a land and period of 12 months as mentioned in the MoU's had expired; (4) The financial capacity of the proposed purchasers did not indicate that they could ever invest heavy cost; (5) Ashwin D Patel MoU's had indicated the price of the land in MoU 2 was excessive; (6) Land in question was subjected to many disputes and litigations; (7) In MOU 1 cost of settling the disputes was with the sellers and in MoU 2 it was with the purchasers; (8) There is no law that terms and conditions of an MoU between third parties are binding on all the subsequent parties, entering into a negotiation, or ultimately purchasing the property. 4.11. It is submitted that therefore, the learned Settlement Commission has materially erred in considering the price mentioned in the MoU 1 and MoU 2. 4.11. It is submitted that therefore, the learned Settlement Commission has materially erred in considering the price mentioned in the MoU 1 and MoU 2. It is further submitted by Shri Soparkar, learned counsel for the petitioners that circle rate or the value as per the stamp registration authorities is more than the price stated in the instrument of transfer and therefore, the provisions of Section 50C wold not be applicable and therefore, there will not be a case of substitution of market value for stated consideration in instrument of transfer. 4.12. It is further submitted by Shri Soparkar, learned counsel for the petitioners that the learned Settlement Commission has materially erred in heavily relying upon the statement of Ashwin D Patel to infer that the deal of the petitioners with M/s. Dev Procon Ltd was struck at Rs. 80000 per sq yard and payment was accordingly made to the petitioners. 4.13. It is further submitted by Shri Soparkar, learned counsel for the petitioners that the learned Settlement Commission has resorted to estimation of sale consideration at Rs. 176 crores and by further estimating that Dev Procon Ltd must have spent a sum of Rs. 60 Crores in settling the disputes/litigations over the land even though there was no evidence to this effect. It is submitted that arriving at figure of Rs. 116 crore is simply an estimation which cannot be equated with amount actually paid to the petitioners. 4.14. It is further submitted by Shri Soparkar, learned counsel for the petitioners that the learned Settlement Commission has even erred in relying upon and considering the statement of Smt. Sakariben Thakor, Smt. Gajaraben Thakor, Shri Yogesh Thakor and Shri Ashwin D Patel. 4.15. It is further submitted by Shri Soparkar, learned counsel for the petitioners that even the persons whose statement have been relied upon are not permitted to be cross examined and therefore, their statement cannot be believed and/or considered. 4.16. Shri Soparkar, learned counsel for the petitioners has made following submissions on not to consider the price mentioned in the MoU and not deviate fro the sale consideration mentioned in the instrument of transfer. (A) Rajesh Thakore had power of attorney only from three lady co-owners therefore, all the co-owners cannot be bound by such an agreement and from this perspective MOU 1 is not a contract enforceable under law. (A) Rajesh Thakore had power of attorney only from three lady co-owners therefore, all the co-owners cannot be bound by such an agreement and from this perspective MOU 1 is not a contract enforceable under law. Yogesh Thakor who had signed MOU 2 as proposed seller does not have any authority of any kind to sale this property and therefore, from this perspective MOU 2 is also not a contract of enforceable under the law. (B) MOU 1 and MOU 2 referred to only 5 dispute attached to the property but on detailed verification it is found that there are 9 disputes attached to the property. This goes to show that the two MOUs did not contain complete and true facts. (C) None of the two MOUs are enforceable against the real owners of the property because sellers in the two are different and authority to sale is also absent in different aspects in the two MOUs. Further, the purchasers are supposed to pay Rs. 1 crore to the sellers but there is no evidence of the same. Further, a discount of Rs. 25000 per sq yard is given to the purchaser if he wants to buy the property with the 5 disputes. The area of the land is 22000 sq yard therefore, a discount of 22000 x Rs. 25000 = Rs. 55 crores is given to the purchaser. This brings the average cost of one dispute at Rs. 11 crores. (D) The statement of three persons namely, Smt. Shakriben Thakor, Shri Yogesh Thakor and Shri Ashwin Patel are at variance with other facts in the case and hence cannot be relied upon as evidence. (E) The department has carried out search and seizer operation at the premises of the petitioners, no evidence which could indicate receipt of cash by the sellers has been found. Whatever cash has been found has been explained by the withdrawal from the bank. Jewelery found is insignificant and has been explained in the SOF. There is no material change in the living conditions of the sellers. The huge money alleged to be received by the sellers cannot disappear just like that. Even in the search there is no iota of trace of this money. Further, it is relevant to note that Dev Procon has booked shops/showrooms at the rate of Rs. 9000 per sq ft whereas petitioners has booked it at Rs. The huge money alleged to be received by the sellers cannot disappear just like that. Even in the search there is no iota of trace of this money. Further, it is relevant to note that Dev Procon has booked shops/showrooms at the rate of Rs. 9000 per sq ft whereas petitioners has booked it at Rs. 11000 per sq ft. If there would have been on money available to the petitioners, then there was no reason to buy showrooms in full cheque and that too at an inflated price. This fact also indicates that no cash was received by the petitioners. (F) There is no evidence that cash money over and above the recorded sale consideration was received by the Thakor family. The brother members have considered that there are 5 disputes and for each dispute Rs. 10 crore must have been paid. But it is established that there were 9 disputes over the property. Going by the logic of brother members, a deduction of at least Rs. 90 crore should have been allowed. In that case, the computation of sale consideration will become Rs. 176-90 = Rs. 86 crore, the difference being less than 5% of the declared sale consideration at Rs. 81.50 crore. (G) Reliance is placed by the descending member on the judgments of the Hon'ble Gujarat High Court in PCIT Vs. Vivke Patel, 2016 66 taxman.com 41 (Guj); Chetnaben J Shah vs. ITO unreported dated 14.07.2016; CBDT circular no. F. No. 286/2/2003 IT(In) dated 10.03.2003 bars addition on the basis of conversion. 4.17. Shri Soparkar, learned counsel for the petitioner has vehemently submitted that cost of the land; being market value as on 1.4.1981 is required to be determined, which is multiplying by indexation factors. It is submitted that land was ancestral and the petitioners had received it in inheritance. It is submitted that therefore, the cost of the land, being market value as on 1.4.1981 is required to be determined which is multiplied by indexation factor and such enhanced figure is to be considered for computation of capital gains. It is submitted that in the present case earlier copy of valuation report prepared by one Shri Alpesh Patel was found in search at the premises of Dev Group. That the said report showed a total cost of the two pieces of land of survey nos. 1273 and 1274 at Rs. 1.85 Crores. It is submitted that in the present case earlier copy of valuation report prepared by one Shri Alpesh Patel was found in search at the premises of Dev Group. That the said report showed a total cost of the two pieces of land of survey nos. 1273 and 1274 at Rs. 1.85 Crores. It is submitted that the same was multiplied by indexation factor and the Commission accordingly determined the indexed cost of acquisition at Rs. 14.56 crores. It is submitted that on the other hand the petitioners relied upon the report of Shri P.K. Desai, an expert in valuation of agricultural land, who determined the cost of the land as on 1.4.1981 at Rs. 7.67 crores and after multiplying it with indexation factor the indexed cost of acquisition was considered by the petitioners at Rs. 60.23 Crores. It is submitted that as there were number of infirmities in the report of Shri Alpesh Patel and same were specifically pointed out to the Commission, the Commission ought to have ignored the report prepared by Shri Alpesh Patel. 4.18. It is further submitted by Shri Soparkar, learned counsel for the petitioners that even otherwise the impugned order passed by the Settlement Commission under Section 245 D(4) suffers from perversity. It is submitted that learned Settlement Commission has ignored certain material/relevant aspect and vital issue which are relevant for adjudication of the issue before it. 4.20. It is further submitted by Shri Soparkar, learned counsel for the petitioners that valuation determined by Settlement Commission at Rs. 80000/- per sq yard is based of no evidence and/or ignoring vital evidence in arriving at its decision and therefore, suffers from perversity. 4.21. It is further submitted that therefore, impugned order passed by the Settlement Commission under Section 245D(4) and the computation of capital gain by enhancing the sale consideration as well as reducing cost of acquisition/market value as on 1.4.1984 for the transfer of land in question, deserves to be quashed and set aside and the same is required to be substituted by figure submitted by the petitioners in its application under Section 245C(1) and the computation of capital gains is required to be directed to be revised accordingly. 4.22. Making above submissions and relying following decisions, it is requested to allow the present petition and grant the relief as prayed for. 4.22. Making above submissions and relying following decisions, it is requested to allow the present petition and grant the relief as prayed for. (1) M/s. R.B. Shreeram Durga Prasad and Fatehchand Nursing Das vs. Settlement Commission (IT & WT) and Another reported in, (1989) 1 SCC 628 . (2) Kuldeep Industrial Corporation and Ors vs. Income Tax Officer and Ors reported in, (1997) 3 SCC 377 . (3) Saurashtra Cement Ltd. and Ors vs. Commissioner of Customs and Anr reported in, (2012) 3 GLH 235 . (4) Mahavir Rolling Mills Pvt. Ltd vs. Income Tax Settlement Commission and Another reported in, (2012) 344 ITR 669 (Guj). 5. Present petition is opposed by Shri M.R. Bhatt, learned counsel for the Revenue. 5.1. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that the impugned final decision rendered by the majority members of the Settlement Commission is absolutely just and proper and on appreciation of evidence and therefore, the same is not required to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India. It is submitted that as such in the present case decision making process on the part of the adjudicating authority and therefore, the same does not call for any interference in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 5.2. It is submitted that as such cogent reasons have been given by the learned Settlement Commission while passing the final order under Section 245D(4) of the Act and arriving at a sale consideration at Rs. 80,000 per sq yard. 5.3. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that two Memorandum of Understandings were found and seized during the course of search operation, in which, two different sale considerations with respect to the same land were mentioned. It is submitted that therefore, considering the sale consideration mentioned in the two MoU's and the statement on oath recorded under Section 132(4) of the Act, the learned Settlement Commission has rightly reached the conclusion that consideration was Rs. 80000 per sq yard. 5.4. It is submitted that the impugned decision has been taken by the majority, it is not open for the petitioner to rely upon the dissenting opinion. 80000 per sq yard. 5.4. It is submitted that the impugned decision has been taken by the majority, it is not open for the petitioner to rely upon the dissenting opinion. It is submitted that impugned majority decision is on appreciation of material on record, more particularly, two MoU's, statements recorded under Section 132(4) of the Act of Smt. Shakriben Thakor, Shri Ashwin D Patel, Shri Rajendra S Thakor and valuation report of Shri Alpesh Patel, which was obtained in the form of seizer during the course of search action. It is further submitted that the assessee furnished the valuation report of Shri P.K. Desai which was obtained after search operation and therefore, learned Settlement Commission has rightly not relied upon the same. 5.5. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that from the statements recorded under Section 132(4) of the Act of various parties recorded during the course of search, there are enough evidence to suggest that original owners i.e. Khodaji Mafatji Thakor and Others were well aware of the MoU's. It is submitted that even the person who entered into the MoU's were Rajendra Shankerlal Thakor (son of Smt. Shakriben Thakor) and Shri Yogesh Thakor (Son of Shri Khodaji M Thakor) who were taking decision on behalf of their family members. It is submitted that MoU 1 is concerned, the same was with Shri Rajendra B Thakor who is Power of Attorney holder of Smt. Gajaraben Thakor, Smt. Hiraben Thakor and Smt. Shakriben Thakor. It is submitted that MoU-2 was with Shri Shri Yogesh Thakor who is elder son of Shri Khodaji Thakor and taking decision on behalf of his father and his aunties. It is submitted that in his statement recorded on 03.01.2013, he has specifically admitted that he was taking decision on behalf of his father and his aunties. It is submitted that therefore, no error has been committed by the learned Settlement Commission relying upon the aforesaid two MoU's and statements of aforesaid persons. 5.6. It is further submitted that during the course of search proceedings at the residence of Smt. Sakriben Thakor, a notarized "Power of Attorney" dated 1.9.2009 was seized and as per the said Power of Attorney, the said Shri Rajendra Thakor was authorized with respect to land in question pertaining to the "Dev Aurum" project, in every aspect by its three original owners viz. Smt. Gajaraben Thakor, Smt. Shakriben Thakor and Smt. Heeraben M Chauhan had given all the rights with respect to said land to Shri Rajendra Thakor (son of Smt. Shakriben Thakor and nephew of other land owners). 5.7. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that on appreciation of evidence learned Settlement Commission has rightly held that Ashwin D Patel was a prospective purchaser and not broker as per the case on behalf of the assessee. 5.8. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that in the sale deed dated 24.2.2012 executed by the assessee the sale consideration was mentioned at Rs. 81.50 crores for 18393 sq yard at the rate of Rs. 30000 per sq yard. It is submitted that in the MOU-1 which was seized during the search proceeding and was that Shri Rajendra Thakor who was also Power of Attorney holder of the three co-owners - Smt. Gajaraben Thakor, Smt. Shakriben Thakor and Smt. Heeraben M Chauhan the sale consideration was mentioned at Rs. 52000 per sq yard and in the MoU-2 which was with Shri Yogesh Thakor - elder son of Khodaji Thakore (assessee), the sale consideration was mentioned at Rs. 77000 per sq yard. It is submitted that in the statements recorded during the search, Shri Ashwin D Patel a prospective purchaser during the search at his residence confirmed that deal of MOU (agreeing sale of Vejalpur land by the sellers to him at the rate of Rs. 77000/- per sq yard) could not be materialized as the rate of Rs. 80000 per sq yard was demanded by Shri Yogesh Thakor (son of Shri Khodaji Thakor and nephew of other co-owners) and Shri Rajendra S Thakor and the land was thus thereafter finally sold to "Dev Group" at the rate of Rs. 80000/- per sq yard. It is further submitted that he also stated that deal of MoU 2 was not materialized and the land was finally sold to "Dev Group" -as Shri Sanjay Thakkar (key person of Dev Group) and Director of M/s Dev Procon Ltd) offered Rs. 3000/- per sq yar more than the consideration stated in the MoU i.e. Rs. 77000/- per sq yard. It is submitted that therefore, in the final order learned Settlement Commission has rightly arrived at sale consideration at Rs. 176 crores i.e. Rs. 3000/- per sq yar more than the consideration stated in the MoU i.e. Rs. 77000/- per sq yard. It is submitted that therefore, in the final order learned Settlement Commission has rightly arrived at sale consideration at Rs. 176 crores i.e. Rs. 80000 per sq yard. 5.9. Now, so far as submission on behalf of the petitioner that in the first MoU the sale consideration was less as the liability to remove the encroachment and clear the dispute was on the purchaser and when the second MoU was executed, in which, the sale consideration is mentioned at Rs. 77000/- per sq yard the liability to remove the encroachment and the resolved the dispute was not on the purchaser is concerned, it is submitted that the aforesaid has been elaborately dealt upon the learned Settlement Commission in their majority decision. 5.10. It is further submitted that on appreciation of evidence and considering the material on record, the learned Settlement Commission has rightly observed that there was involvement of cash component and sale consideration mentioned in the sale deed dated 24.02.2012 was not correct and true sale consideration. It is submitted that during the course of search action Smt. Shakriben Thakor in her statement under Section 132(4) stated that she received Rs. 60 lakh in cash which proves involvement of cash transaction in Vejalpur land deal. It is submitted that as such total cash of Rs. 50,23,030/- was found out of which Rs. 44,00,000/- was seized during the search at applicant and other co-owners which involvement of cash component in Vejalpur land deal. 5.11. It is vehemently submitted by Shri M.R. Bhatt, learned counsel for the Revenue that in the present case learned Settlement Commission has given fullest opportunity to the assessee and after following principles of natural justice and on appreciation of evidence and the material on record has arrived at the sale consideration at Rs. 80000 per sq yard against the valuation in the sale deed mentioned at Rs. 3000 per sq yard and thereafter final order under Section 245D(4) has been passed. 80000 per sq yard against the valuation in the sale deed mentioned at Rs. 3000 per sq yard and thereafter final order under Section 245D(4) has been passed. Making above submission and relying upon the decision of the Hon'ble Supreme Court in the case of Fatechand Nursing Das vs. Settlement Commission reported in, (1989) 176 ITR 169 (SC) as well as in the case of Jyotendrasinhji vs. S.I. Tripathi reported in, (1993) 201 ITR 611 , 68 Taxman 59(SC) and the decision of this Court in the case reported in 390 ITR 306(Guj) and the decision of the Madras High Court in the case of Dix Francis vs. Income Tax Settlement Commission and ors reported in, (2017) 391 ITR 401 (Mad), it is requested to dismiss the present petition. 6. In rejoinder, Shri Soparkar, learned counsel for the petitioner has vehemently submitted that as such statement of all the witnesses/concerned persons are required to be read as a whole. 6.1. It is further submitted that learned Settlement Commission has materially erred in giving importance to the statement of Shri Manshukhbhai. It is submitted that the Manshukhbhai is not reliable person at all and therefore, his statement ought not to have been relied upon and/or considered by the learned Commission. Making above submissions, it is requested to allow the present petition. 7. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that what is challenged in the present petition is the final order passed by the learned Settlement Commission (by majority) passed under Section 245D(4) of the Income Tax Act. Therefore, while considering the petition challenging the impugned order passed under Section 245D(4) of the Act, the scope of judicial review of the order passed by the Settlement Commission in exercise of writ jurisdiction is required to be considered. 7.1. In case of Fatechand Nursing Das vs. Settlement Commission (IT And WT) and anr reported in, (1989) 176 ITR 169 the Supreme Court observed that in exercise of power of judicial review of the decision of the Settlement Commission, the Court is concerned with the legality of the procedure followed and not with the validity of the order. Judicial review is not concerned with the decision but with the decision-making process. 7.2. The limited scope of judicial review against the order of Settlement Commission is well settled proposition. Judicial review is not concerned with the decision but with the decision-making process. 7.2. The limited scope of judicial review against the order of Settlement Commission is well settled proposition. In case of Jyotendrasinhji vs. S.I. Tripathi and ors reported in, (1993) 201 ITR 611 , the Supreme Court while holding that against the order of the Settlement Commission, writ jurisdiction of the High Court is not barred. The Supreme Court further observed that judicial review flowing from exercise of such powers would be restricted to considering whether the order of the Settlement Commission is contrary to the provision of Income Tax Act. It was observed as under: Be that as it may, the fact remains that it is open to the Commission to accept an amount of tax by way of settlement and to prescribe the manner in which the said amount shall be paid. It may condone the defaults and lapses on the part of the assessee and may waive interest, penalties or prosecution, where it thinks appropriate. Indeed, it would be difficult to predicate the reasons and considerations which induce the commission to make a particular order, unless of course the commission itself chooses to, give reasons for its order. Even if it gives reasons in a given case, the scope of enquiry in the appeal remains the same as indicated above viz., whether it is, contrary 956 to any of the provisions of the Act. In this context, it is relevant to note that the principle of natural justice (and alteram partem) has been incorporated in Section 245-D itself. The sole overall limitation upon tire Commission thus appears, to be that it should act in accordance with the provisions of the Act. The scope of enquiry, whether by High Court under Article 226 or by this Court under Article 136 is also the same whether the order of the Commission is contrary to any of the provisions of the Act and if so, has it prejudiced the petitioner/appellant apart from ground of bias, fraud & malice which, of course, constitute a separate and independent category. Reference in this behalf may be had to the decision of this Court in Sri Ram Durga Prasad v. Settlement Commission, (1989) 176 ITR 169 , which too was an appeal against the orders of the Settlement Commission. Reference in this behalf may be had to the decision of this Court in Sri Ram Durga Prasad v. Settlement Commission, (1989) 176 ITR 169 , which too was an appeal against the orders of the Settlement Commission. Sabyasachi Mukharji J., speaking for the Bench comprising himself and S.R. Pandian, J. observed that in such a case this Court is "concerned with the legality of procedure followed and not with the validity of the order.' The learned Judge added 'judicial review is concerned not with the decision but with the decision-making process." Reliance was placed upon the decision of the House of Lords in Chief Constable of the N.W. Police v. Evans, (1982) 1 WLR 1155. Thus, the appellate power under Article 136 was equated to power of judicial review, where the appeal is directed against the orders' of the Settlement Commission. For all the above reasons, we are of the opinion that the only ground upon which this Court can interfere in these appeals is that order of the Commission is contrary to the provisions of the Act and that such contravention has prejudiced the appellant The main controversy in these appeals relates to the interpretation of the settlement deeds though it is true, some contentions of law are also raised. The commission has interpreted the trust deeds in a particular manner, Even if the interpretation placed by the commission the said deeds is not correct, it would not be a ground for interference in these appeals, since a wrong interpretation of a deed of trust cannot be said to be a violation of the provisions of the Income Tax Act it is equally clear that the interpretation placed upon the said deeds by the Commission does not bind the authorities under the Act in proceedings relating to other assessment years. 8. It is required to be noted that before the Settlement Commission the dispute was with respect to the sale consideration mentioned in the sale deed dated 24/2/2012, in which, sale consideration was mentioned at Rs. 81.50 crores i.e. Rs. 30,000 per sq yard. On the basis of material on record and considering two MoU's seized during the course of search at the premises of the concerned assessee/respective applicants in which, in MoU1 the sale consideration was mentioned at Rs. 52000/- per sq yard and in MoU-2 sale consideration was mentioned at Rs. 81.50 crores i.e. Rs. 30,000 per sq yard. On the basis of material on record and considering two MoU's seized during the course of search at the premises of the concerned assessee/respective applicants in which, in MoU1 the sale consideration was mentioned at Rs. 52000/- per sq yard and in MoU-2 sale consideration was mentioned at Rs. 77000/- per sq yard and on appreciation of evidence and considering the statements of the concerned persons recorded during the search which were on oath and other material on record, more particularly, the valuation report of one Shri Ashwin D Patel which was also seized during the course of search and thereafter on appreciation of evidence and the report submitted by the Commissioner under Section 245(C) of the Act and after giving fullest opportunity to the concerned applicant and by giving cogent reasons and by passing detailed speaking order, the Settlement Commission by majority has not accepted sale consideration mentioned in the sale deed dated 24.02.2012 and has come to the conclusion that during the sale transaction there was an element cash component and thereafter has not accepted the sale consideration mentioned in the sale deed dated 24.02.2012 and thereafter has determined sale consideration at Rs. 80000/- per sq yard. 8.1. Having heard the learned counsel for the respective parties and having perused the order passed by the learned Commission and having gone through the report submitted before the Settlement Commission, we found that the findings arrived at by the Settlement Commission is just and proper and we found that Commission has exercised due discretion vested in law and therefore, such findings on fact does not deserve to be disturbed or substituted. 8.2. From the record, we found that the application submitted by the applicants have been dealt with within the schedule prescribed by the provision of law. A detailed procedure has been observed while exercising the powers under Section 244 D so much so that a report has also been examined thoroughly by the said Commission. We found that during the course of hearing proper opportunity has been given to the respective parties and therefore, amount which have been determined by the Settlement Commission (by majority) are just and proper. It appears that during the proceedings before the Settlement Commission detailed examination of material on record took place. We found that during the course of hearing proper opportunity has been given to the respective parties and therefore, amount which have been determined by the Settlement Commission (by majority) are just and proper. It appears that during the proceedings before the Settlement Commission detailed examination of material on record took place. The assessee original applicant raised multiple contentions to oppose the report submitted by the Commissioner which have been dealt with and considered by the learned Commission during the course of inquiry and thereafter a final order has been passed under Section 245 D (4) of the Act determining the sale consideration at Rs. 80000 per sq yard. 8.3. As observed herein above, the impugned order has been passed by the learned Settlement Commission (by majority) in exercise of powers under Section 245D(4) of the Act. Section 245 D proceeds three circumstances, which Commission would take note, there being (1) on the basis of material contained in the Commissioner report; (2) having regard to the nature and circumstances of the case; (3) the complexity of investigation involved therein. Therefore, when the learned Settlement Commission has given finding considering the material on record which was forming part of the Commissioner report and on appreciation of evidence, the question would be whether this Court exercising the writ jurisdiction would re-examine such factual finding recorded by the Commission. As per the catena of decisions of the Hon'ble Supreme Court and other High Courts, the Court should be sole in interfering with the Settlement Commission Order and can be interfered with if there are grave procedure effect such as violation of mandatory procedure requirement of the provision in Chapter XIX of the Act and/or violation of the Rule of natural justice are made out and if it is found that there is no nexus between the reasons given and the decision taken by the Commissioner and that the Court cannot interfere either with error of fact or error of law alleged to have been committed by the Commission. 8.4. Bearing in mind the above legal principle and from limited scope of judicial review against the review of the order passed by the Settlement Commission, the challenge to the impugned order passed by the learned Settlement Commission is required to be considered. 9. 8.4. Bearing in mind the above legal principle and from limited scope of judicial review against the review of the order passed by the Settlement Commission, the challenge to the impugned order passed by the learned Settlement Commission is required to be considered. 9. Number of submissions have been made by Shri Soparkar, learned counsel for the petitioner on merits of the impugned order passed by the learned Settlement Commission, more particularly, reliance placed upon two MoU's as well as statements of the concerned persons recorded during the search under Section 132 of the Income Tax Act as well as valuation report of Shri Alpesh Patel relied upon by the Settlement Commission. It is the case on behalf of the petitioner that while determining the sale consideration at Rs. 80000 per sq yard, learned Settlement Commission has erred in relying upon the aforesaid two MoU's, as the same shall not be admissible. However, it is required to be noted that the proceedings before the learned Settlement Commission were not stricto senso the assessment proceedings. That the proceedings before the Settlement Commission are in the spirit of settlement and to put an end to the controversy. The Settlement Commission is required to be considered by and large the material on record and arrived at just amount of the Income. Therefore, after following due procedure as required under the provisions of Section 245 and disclosure made by the assessee and the report of the Valuer and the material on record, thereafter the Settlement Commission is required to arrive at and/or determine the amount of income and consequently the amount of tax. Therefore, the strict rule of procedure and/or admissibility of the stricto senso may not be applicable to the proceedings before the Settlement Commission. The Settlement Commission is free to determine the income on the basis of the material on record. As observed herein above, normally the order passed by the Settlement Commission may not be subject to judicial review unless it is found that findings recorded by the Settlement Commission are perverse and/or income determined by the Settlement Commission is such that no prudent person would arrive at a such income. 9.1. As observed herein above, normally the order passed by the Settlement Commission may not be subject to judicial review unless it is found that findings recorded by the Settlement Commission are perverse and/or income determined by the Settlement Commission is such that no prudent person would arrive at a such income. 9.1. Considering the impugned order passed by the learned Settlement Commission, it appears that the findings recorded by the learned Settlement Commission are on appreciation of evidence and/or material on record, more particularly, two MoU's executed by/at the behest of the petitioner of the same date but with different parties having different sale consideration mentioned. The learned Settlement Commission also considered the statements of Smt. Sakariben Thakor, Smt. Gajaraben Thakor, Shri Yogesh Thakor and Shri Ashwin D Patel and even the statement of Shri Manshukhbhai Patel and valuation report of Shri Alpesh Patel. The MoU's and the valuation report of Shri Alpesh Patel. The MoU's and the statements of the various persons/parties which are on oath and recorded during the course of search are required to be considered conjointly and as a whole and if they are considered conjointly and as a whole, it cannot be said that the learned Commission has committed any error in determining the sale consideration at Rs. 80000 per sq yard. At this stage, it is required to be noted that in the sale deed sale consideration is mentioned at Rs. 30000 per sq yard in the two MoU's the sale consideration is mentioned at Rs. 52001/- per sq yard and Rs. 77001/- per sq yard respectively. 10. At this stage, it is required to be noted and it cannot be disputed and it is not in dispute that there is any procedure lapse on the part of the Settlement Commission while passing the impugned order. There is no violation of principles of natural justice while passing the impugned order. The disclosure made by the petitioner while submitting the application for settlement, the report of Commissioner, applicant's rejoinder, oral argument from both the sides and the documents submitted along with SOF and statements recorded during the search/post search proceedings have been dealt with and considered in detailed and thereafter, the impugned order has been passed. 10.1. The two MoU's are dealt with and considered by the learned Commission in detailed in paragraph 7.1 and 7.2. 10.1. The two MoU's are dealt with and considered by the learned Commission in detailed in paragraph 7.1 and 7.2. On considering two MoU's it can be safely be observed that two MoU's were by and at the behest of the land owners, of which, the petitioner was the head. Each and every aspects and material relied upon have been minutely considered by the learned Settlement Commission. The findings recorded by the learned Commission in para 7, which are as under: "7. Decision: After careful consideration of the issues put forth in PCIT Rule-9 report, applicants rejoinder and oral arguments from both sides, the documents submitted along with the SOF and the statements recorded during the search/post search proceedings, we find that the five applicants belonging to Khodaji Group Ahmedabad were co-owners of agricultural lands bearing Survey No.1273 & 1274 at Vejalpur, Ahmedabad admeasuring 8470 & 29767 sq yards totaling 38237 sq yards. The said land after conversion to non agricultural land was sold to Dev Procon Ltd on 24.02.2012 i.e. in Assessment Year 2012-13. Upon conversion of the said agricultural land into non-agricultural land the equivalent area of NA Land was reduced to 5802 sq yard & 16918 sq yard totaling 22000 sq yard. 7.1. The most issue in the settlement applications of the applicants is the capital gain arising on account of the said sale of land bearing survey no.1273 and 1274 at Vejalpur, Ahmedabad. Before the said land was sold to Dev Procon Ltd. on 24.02.2012 at the documented value of Rs. 81,50,00,000/- two MOUs were executed by at the behest of the applicants While the selling rate in seized MOU-1 was Rs. 77001/- per sq yard, the same was Rs. 52001/- per sq yard in seized MOU-2. The purchasers in the two MOUs were the same namely Ashwin D Patel & Mansukh N Patel. The difference in rates is stated in MOUs to be on account of the responsibility of settling the disputes in the said land. In the first case (MOU-1) the responsibility was with the applicants and in the latter case (MOU-2) it was with the purchasers although MOUs were executed on the same date i.e. 10.02.2011. Both MOUs have clearly spelt out the pending five civil suits in respect of the said land namely: (i) Sp. C.S. No.388 of 2009, (ii) Sp. C.S No.344 of 2008 (iii) Sp. Both MOUs have clearly spelt out the pending five civil suits in respect of the said land namely: (i) Sp. C.S. No.388 of 2009, (ii) Sp. C.S No.344 of 2008 (iii) Sp. C.S. No.417 of 2009, (iv) Sp. C.S No.498 of 2009 & (v) Sp. C.S No.333 of 2009. We thus find that the selling rate of Vejalpur land of the applicants has got reduced from MOU-1 to MOU-2 on account of the shift of the responsibility to clear the 5 pending civil suits from the seller to the purchaser. 7.2 We further find from the statement recorded u/s 132(4) of Shri Ashwin D Patel that the said deal of MOU @ Rs. 77001/- per sq yard could not materialize as the rate of Rs. 80000/- per sq yard was demanded by Shri Yogesh Thakor (son of Smt. Shakriben Thakor) and the land was thus finally sold to Dev Procon Ltd at a rate higher by Rs. 3000/- per sq yard (Answer to query no. 5 & 11). At pages 4 & 5 of the said statement recorded during the search, Ashwin D Patel has also stated that he has separated from Mansukh D Patel on account of the fact that Mansukh D Patel has taken Rs. 10 crores from Dev Procon Ltd like other 5 persons who were litigants in the said land. Ashwin D Patel further states in the said statement that he was ignored by Dev Group although he had half share in the MOU with the applicants along with Mansukh M Patel. That is why he stated to have filed court case in the matter. 7.3. At pages 799 to 836 of Paper Book filed by the applicant on 3.8.2016, we further find English translation copy of agreement to sale dated 18.10.2011 between the applicants and Sanjaybhai Hiralal Thakkar (director of Dev Procon Ltd.) At pages 23 to 25 of the said agreement, wherein Sanjay H Thakkar is the first party and the applicants are the second party, the following is mentioned: "3...... In relation with the aforesaid property Sp.C.S. No.432 of 2008, 434 of 2008, 417 of 2009, 498 of 2009, 632 of 2010, 333 of 2009 are filed in the Court of Hon'ble Pr. In relation with the aforesaid property Sp.C.S. No.432 of 2008, 434 of 2008, 417 of 2009, 498 of 2009, 632 of 2010, 333 of 2009 are filed in the Court of Hon'ble Pr. Senior Civil Judge, will have to compromise in said suits and to obtain decree on basis of the compromise pursis and will have to withdraw unconditionally same of the suits out of it. The second party will have to remain present before the Court to sign the pursis in the aforesaid suits and the first party has taken responsibilities for compromise and any expense to be incurred therein has to be borne by the first party ... As agreed between the first party and second party the second party will have to remove all other suits and litigations except mentioned above at their own costs and have to make the titles of the said property to be clear and saleable ...." From the above we thus find that in the final sale of land to Dev Procon Ltd. on 24.02.2012 the responsibility to clear the litigation in respect of the land was with the purchasers. 7.4. On going through the statement of Yogesh Khodaji Thakor during search u/s 132(4) against Q. No. 12, we find that similar assertion has been made by him as given by Ashwin D Patel in respect of the final deal made by the applicants with Dev Procon Ltd. It is stated by Yogesh Thakor that Shri Sanjay H Thakkar had taken upon himself to resolve all the disputes in respect of the Vejalpur land of the applicants. It is also asserted by Yogesh in statement that the litigants were demanding Rs. 50 crore for settlement of disputes in respect of the land. 7.5. We thus find from the above two statements at para 7.2 and 7.4 above, which were recorded during the search from Shri Ashwin D Patel and Yogesh K Thakor taht Sanjay H Thakkar (Director of Dev Procon Ltd) made the final deal with the applicants @ Rs. 80000/- per sq yard in respect of Vejalpur Land and Sanjay Thakkar took upon himself the liability to discharge with respect to the litigation in the land by the paying to the extent of Rs. 60 crores (Rs.50 crores with respect to 5 litigations + Rs. 80000/- per sq yard in respect of Vejalpur Land and Sanjay Thakkar took upon himself the liability to discharge with respect to the litigation in the land by the paying to the extent of Rs. 60 crores (Rs.50 crores with respect to 5 litigations + Rs. 10 crores with respect to Mansukh D Patel) At para 5.9 above, we also find narration of the evidences adduced by the PCIT in Rule 9 report regarding the finalization of the deal with Sanjay H Thakkar at Rs. 80,000/- per sq yard from the statements of Smt. Shakriben S Thakor, Smt. Gajraben Thakor, Shri Yogesh K Thakor & Ashwin D Patel. 7.6. In view of the above stated facts and evidences both oral and documentary, we conclude that the sale transaction of NA land of the applicants admeasuring 22000 sq yard to Dev Procon Ltd. after clearing the disputes and litigations in respect of the said land is less by Rs. 60 crores from the sale value at the rate of Rs. 80,000/- per sq yard (with the disputes and litigations). We thus determine the sale consideration of Vejalpur Land by the applicants to Dev Procon Ltd. to be the difference of Rs. 176,00,96,000/- minus Rs. 60,00,00,000/- which comes to Rs. 116,00,96,000/- instead of documented value of Rs. 81,50,00,000/-. The capital gain arising on the sale of Vejalpur Land of the applicants to Dev Procon Ltd. is thus computed on the above sale consideration of Rs. 116,00,96,000/- in place of the total consideration claimed by the PCIT of Rs. 176,00,96,000/- at para 5.25 supra. 7.7. Cost of Rs. 4,83,521/- has been claimed at the time of conversion of land from agricultural purpose to non agricultural purpose by the applicants. The same is allowed for deduction u/s 48 of the applicants. 7.8. Stamp duty and Registration expenditure has been incurred to the extent of Rs. 4,80,87,150/- at the time of sale of Vejalpur Land to M/s Dev Procon Limited. The said expenditure is borne by the purchaser as per the Registered conveyance deed dated 24.2.2012 as it is the liability of the purchaser under the said Registered conveyance deed. We therefore, do not allow the said expenditure for deduction under Section 48 for computation of capital gains to the applicants with respect to the Vejalpur land. 7.9. Regarding the cost of acquisition of the land, deduction to the extent of Rs. We therefore, do not allow the said expenditure for deduction under Section 48 for computation of capital gains to the applicants with respect to the Vejalpur land. 7.9. Regarding the cost of acquisition of the land, deduction to the extent of Rs. 60,23,14,800/- has been claimed by the applicants for the computation of capital gain based on exhibit 37 of the SOF. As narrated at para 4.1.16 above the said exhibit is valuation report of P. K. Desai with respect to Vejalpur land which determines the value of the land as on 1.4.1981 at Rs. 1,69,96,800/- and Rs. 5,97,31,200/- with respect to survey no. 1273 and 1274 respectively. However, during search, valuation report (exhibit no. 38 of SOF) was also found and seized which indicates the fair market value of the land as on 1.4.1981 at Rs. 41,07,580/- respectively Based on the seized valuation report of Alpesh Patel the cost as on 1.4.1981 with respect to the Vejalpur land and the indexed value as on the date of transfer is as below:- As per Alpesh Patel Report Sr. No. Particulars S.No.1273 S.No1273 Total SOF 1 Jantri Rate per sq mter as per 2008-09 3400 3500 371 2 Index Value taken by Alpesh Patel in his report 582 582 3 Resulting Rate (3) =(1)/(2)* 100 3400/582*100 3500/582*100 584 601 4 Say 580 580 371-372 5 Area 7082 24888 31970 6 Cost as on 1.4.1981 4107560 14435040 18542600 371-372 7 Indexed Value as on the date of Transfer @ 7.85 32244346 113315064 14555940 354 We have considered the above valuation reports and we do not accept the valuation report furnished by the applicants from P. K. Desai which has been obtained after the search as the same adopts the value of gold for the purpose of valuation. The valuation as per the seized valuation report as described in the above table is therefore, allowed to the applicants for computation of deduction u/s 48 for the purpose of capital gain. Thus capital gain with respect to sale of the land being survey no.1273 and 1274 as below: (i) Sale consideration received from M/s. Dev Procon Ltd Rs.1,16,00,96,000/- (as per para 7.6 above) Less: (a) Cost of conversion of NA: Rs.4,83,521/- (b) Stamp Duty and Registration: NIL (c) Cost of acquisition of Land: Rs.14,55,59,410/- (As per para 7.9 above) Rs. 14,60,42,931/- (ii) Total Capital Gain to 5 applicants: Rs.1,01,40,53,069/- 7.10. 14,60,42,931/- (ii) Total Capital Gain to 5 applicants: Rs.1,01,40,53,069/- 7.10. On the basis of above total capital gain computation, the individual computation of capital gain of the applicants is as under:- Sr. No. Name of the owner Capital gain w.r.t. total consideration (1) (2) (3) 1 Shri Khodaji Mafatji Thakor 20,28,10,613/- 2 Shri Shakriben Thakor 20,28,10,613/- 3 Shri Bhanuben N Rathod 20,28,10,613/- 4 Shri Hiraben M Chauhan 20,28,10,613/- 5 Shri Gajaraben B Thakor 20,28,10,613/- 10.2. Considering the aforesaid facts and circumstances and findings recorded by the learned Settlement Commission and the scope of judicial review of the order passed by the Settlement Commission recorded herein above, we are of the opinion that no interference of this Court is called for in exercise of powers under Article 226 of the Constitution of India. 11. From the record, we found that the application submitted by the petitioner has been dealt with during the scheduled prescribed by the provisions of law. A detailed procedure has been observed while exercising the powers under Section 244 D so much so that a report has also been examined thoroughly by the said Commission. As observed herein above, during the course of hearing proper opportunity has been given to the respective parties and therefore, amount which have been determined by the Settlement Commission (by majority) are just and proper. It is required to be noted that issue before the Commission was with respect to the determination of the capital gain on sale of the aforesaid two lands. 12. Considering the aforesaid facts and circumstances and for the reasons stated above, we are of the opinion that no interference of this Court is called for under Article 226 of the Constitution of India and that too with the limited scope of judicial review of the order passed by the Settlement Commission, while exercising the powers under Article 226 of the Constitution of India. Under the circumstances, the challenge to the impugned order passed by the learned Settlement Commission fails and same deserve to be dismissed and is accordingly dismissed. Rule is discharged. No costs.