Commissioner of Gift Tax vs D. Selvaraj

R. Jayasimha Babu, J.—A partition between the father and son, made on June 18, 1972, had been accepted by the Department by an order

made u/s 171 of the Income Tax Act, 1961. Despite that, gift-tax proceedings were initiated for the assessment years 1979-80, 1980-81 and

1981-82. Those proceedings were rightly set aside in appeal by the Commissioner (Appeals). The Commissioner''s finding was confirmed by the

Tribunal.

The Revenue has chosen to seek a reference with regard to the correctness of the order of the Tribunal. When the Department had itself

admitted that the property had belonged to a Hindu undivided family consisting of the father and the son, and has accepted the partition between

the two, it cannot allege that the share allotted to the son, by making appropriate entries in the books of account, amounted to a gift. It is

elementary that in a Hindu undivided family, a coparcener has a right by birth, the son was as much entitled to the property of a Hindu undivided

family as the father was. The division effected between the two would not result in a gift from one to the another.

The question referred to us is answered in favour of the assessee and against the Revenue. The assessee shall be entitled to costs of a sum of

Rs. 1,500.