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Commissioner of Gift Tax Vs. Jer Navis Lubimeff - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberG.T. Ref. No. 2 of 1967
Judge
Reported in(1980)18CTR(Bom)196
ActsGift Tax Act, 1958 - Sections 2 and 4(1)
AppellantCommissioner of Gift Tax
RespondentJer Navis Lubimeff
Excerpt:
- - 2(xxiv) that it will be attracted only in the case where there is a general power to appoint appears to us to be clearly borne out by the use of the words 'any person other than the donee of the power. 3. the release of life interest in the instant case was clearly a unilateral act and in holding that it will not amount to transfer of property u/s 2(xxiv)(d) and therefore, not a gift, the division bench was merely following the decision of the supreme court. having heard the learned counsel for the assessee and the revenue, we are therefore not satisfied that this case can be considered to be fit case for appeal to the supreme court.chandurkar, j.1. on a construction of the trust deed in question, the division bench which decided the reference has taken the view that the power to appoint conferred by cl. 2(3) of the deed of trust is not a general power of appointment, but a special power of appointment and the exercise of that power does not fall within cl. (c) of the definition of transfer of property given in cl. (c) of section 2(xxiv) of the gt act, 1958. the construction which the division bench has placed on cl. (c) of s. 2(xxiv) that it will be attracted only in the case where there is a general power to appoint appears to us to be clearly borne out by the use of the words 'any person other than the donee of the power.' we do not therefore think that the question relating to the construction of the scope of cl......
Judgment:

Chandurkar, J.

1. On a construction of the trust deed in question, the Division Bench which decided the reference has taken the view that the power to appoint conferred by cl. 2(3) of the deed of trust is not a general power of appointment, but a special power of appointment and the exercise of that power does not fall within cl. (c) of the definition of transfer of property given in cl. (c) of section 2(xxiv) of the GT Act, 1958. The construction which the Division Bench has placed on cl. (c) of s. 2(xxiv) that it will be attracted only in the case where there is a general power to appoint appears to us to be clearly borne out by the use of the words 'any person other than the donee of the power.' We do not therefore think that the question relating to the construction of the scope of cl. (c) is such that the Revenue can properly ask for leave to appeal to the Supreme Court.

2. So far as the second question decided by the Division Bench is concerned, it only applies the decision of the Supreme Court in Goli Eswariah v. CGT, Andhra Pradesh in which the Supreme Court has positively ruled that the 'transaction entered into' by one person with another contemplated by cl. (d) of s. 2(xxiv) of the GT Act, 1958, does not cover a unilateral act.

3. The release of life interest in the instant case was clearly a unilateral act and in holding that it will not amount to transfer of property u/s 2(xxiv)(d) and therefore, not a gift, the Division Bench was merely following the decision of the Supreme Court. In so far as the third question is concerned relating to the inclusion of surrender as a gift under the provisions of s. 4(1)(c), the High Court has found that there is an unequivocal finding that the deed of release is executed bona fide. Having heard the learned counsel for the assessee and the Revenue, we are therefore not satisfied that this case can be considered to be fit case for appeal to the Supreme Court. Rule discharged with costs.


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