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Commissioner of Gift-tax Vs. Dinakar V. Shanbhag (by Lr. of K. Vaikunta Shanbhag) and Prabhakar Shanbhag - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberT.R.Cs. Nos. 19, 20 and 22 of 1980
Judge
Reported in(1987)61CTR(Kar)20; [1986]160ITR197(KAR); [1986]160ITR197(Karn); [1986]24TAXMAN690(Kar)
ActsGift Tax Act, 1958 - Sections 5(1) and 26(1)
AppellantCommissioner of Gift-tax
RespondentDinakar V. Shanbhag (by Lr. of K. Vaikunta Shanbhag) and Prabhakar Shanbhag
Advocates:K. Srinivasan, Adv.
Excerpt:
.....made on july 10, 1979, the tribunal had found thus :it may perhaps be possible to take a view that since the assessee as well as the two sons were the only three coparceners of the hindu undivided family who withdrew identical amounts on the same date, viz......circumstances of the case, it could be held that the withdrawal of amounts by the coparceners from hindu undivided family funds amounts to partial partition and, consequently, it becomes individual assets 2. whether, on the facts and in the circumstances of the case, the assessee is entitled to relief under section 5(1)(viii) of the gift-tax act, 1958 ?' 3. in order to appreciate the questions referred to us, it is necessary to notice the facts as found by the tribunal. 4. the assessees who are members of a bigger hindu undivided family consisting of themselves, their wives and other members, withdrew a sum of rs. 15,000 each on november 6, 1974, from out of the funds of the hindu undivided family and each of them gifted the said sums to their respective wives. in the returns filed by.....
Judgment:

K.S. Puttaswamy, J.

1. As the questions that arise for determination in these cases are common, we propose to dispose of them by a common order.

2. In each of these references made under section 26(1) of the Gift-tax Act, 1958 ('the Act'), the Income-tax Appellate Tribunal, Bangalore Bench, Bangalore ('the Tribunal'), at the instance of the Revenue, has referred the following questions of law for the opinion of this court :

'1. Whether, on the facts and in the circumstances of the case, it could be held that the withdrawal of amounts by the coparceners from Hindu undivided family funds amounts to partial partition and, consequently, it becomes individual assets

2. Whether, on the facts and in the circumstances of the case, the assessee is entitled to relief under section 5(1)(viii) of the Gift-tax Act, 1958 ?'

3. In order to appreciate the questions referred to us, it is necessary to notice the facts as found by the Tribunal.

4. The assessees who are members of a bigger Hindu undivided family consisting of themselves, their wives and other members, withdrew a sum of Rs. 15,000 each on November 6, 1974, from out of the funds of the Hindu undivided family and each of them gifted the said sums to their respective wives. In the returns filed by them under the Act before the Gift-tax Officer, they claimed exemption from payment of gift-tax on the said sums under section 5(1)(viii) of the Act which was rejected by the Gift-tax Officer with which the first appellate authority also concurred. But, in second appeals filed by the assessees, the Tribunal accepted the same and has allowed the exemptions claimed under the Act. Hence, these references.

5. Sri K. Srinivasan, learned senior standing counsel, appearing for the Income-tax Department, contends that on the very first finding recorded by the Tribunal to the effect that there was a partial partition, the coparceners only became minor Hindu undivided families and the gifts made by them would not fall within the purview of section 5(1)(viii) of the Act. In support of his contention, Sri Srinivasan strongly relies on a Division Bench ruling of this court in the case of CGT v. B. K. Sampangiram : [1986]160ITR188(KAR) (T.R.C. No. 25 of 1979 decided on August 16, 1985).

6. The assessees who have been duly served have remained absent and are unrepresented.

7. In its separate but identical orders made on July 10, 1979, the Tribunal had found thus :

'It may perhaps be possible to take a view that since the assessee as well as the two sons were the only three coparceners of the Hindu undivided family who withdrew identical amounts on the same date, viz., November 6, 1974, and gifted them to their respective wives, to the extent of Rs. 45,000 there was a partial partition effected in the Hindu undivided family and these coparceners became the individual owners of Rs, 15,000 each before they gifted the amounts to their respective wives.'

8. On this very finding recorded by the Tribunal, it follows that the three members in Hindu law would constitute minor Hindu undivided families. When once it is held that the assessees constitute minor Hindu undivided families, it follows that on the ratio of the ruling of this court in Sampangiram's case : [1986]160ITR188(KAR) , the gifts made by, them to their respective wives would not fall within the purview of section 5(1)(viii) of the Act.

9. On the above discussion, we hold that the questions referred to us have to be answered in favour of the Revenue and against the assessees.

10. In the light of our above discussion, we answer the questions referred to us as hereunder :

Question-1 : Answer :

On partial partition, each of the individual members of the bigger Hindu undivided family constitute a minor Hindu undivided family.

Question-2 : Answer :

Answered in the negative and in favour of the Revenue and against the assessees.

11. In the circumstances of the case, we direct the parties to bear their own costs.


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