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TMI Blog1982 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... was claimed to be exempt u/s 5(1) (vii) of the GT Act. The deceased Sri. G.Ramaswamy was also a partner in a firm called M/s V.S.K. Ganapathy Chettiar having one-third share therein. The assessee s wife Smt. Nagarathinam Ammal became a partner in the firm during the relevant previous year on 16th November, 1975. She was given one sixth share in the profits of the firm and there was a corresponding reduction of the share of her husband from 1/3rd to 1/6th. In the assessment made to gift-tax the assessee claimed that gift-tax is not attracted in view of the exemption contained u/s 5(1)(vii) with regard to gifts to the daughter and u/s 5(1) (viii) in regard to value of the gift, if any referable to 1/6th share in the profits of the firm obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion objecting to the finding of the AAC that the gifts made to the daughter were not on the occasion of the marriage and contending that though the amounts were gifted later, it was in discharge of the undertaking made earlier at the time of marriage. 3. The ld. Deptl. Rep. submitted that the assessee being an HUF the exemption u/s 5(1) (viii) in regard to gift to spouse will not be available because there cannot be a spouse of an HUF and relies strongly on the decision in CGT vs, Harbhajan Singh and Sons (1979) 119 ITR 542 (P H). He also contended that the valuation made in regard to the goodwill of the business of the firm for determining the value of the gift by way of allotment of share to Smt. Nagarathinam Ammal made by the GTO is on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d allowed u/s 5 (1) (viii) in this case, even though the assessee is an HUF is supported by the decision in Jana Veer Bhadrayya vs CGT (1966) 59 ITR 176 (AP) and CGT vs.Hari Chand (1974) 95 ITR 308 (P H). The ld. Deptl. Rep. explained that the decision relied on by the assessee are distinguishable on facts, where the gift made was immovable property belonging to the HUF. 4. On a consideration of the facts and the contention of the parties, we must uphold the contention of the assessee that there is no gift at all involved in regard to the share obtained by Smt. Nagarathinam Ammal in the partnership firm. The gift presupposes absence of consideration. In the present case the facts as stated by the assessee and not disputed show that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities in the form in which it is objected to before us and the objection mainly related to the claim of exemption, yet the assessee is competent and entitled to support the order on the legal question now raised on the undisputed facts already on record. Since we are holding that there is no gift involved, it is unnecessary for us to consider the other objection of the department relating to the reduction of the value of goodwill and also the question as to whether the exemption u/s 5(1) (viii) will apply where a gift is made by an HUF as in this case. The objection of the department in its appeal, therefore, stands rejected. 5. Coming to the cross objection, it is the submission of the ld. Counsel for the assessee that the mere dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aughter Smt. Jayanthi as per the undertaking given at the time of marriage . It is not disputed that the marriage itself took place two years before and in the absence of any corroborative evidence to support the claim of the assessee, we agree with the departmental authorities that mere narration in the account does not establish the assessee s case. Reference to the commentary in Sampath Iyengar s book and Mulla s book and the decision of the Supreme Court referred to therein does not advance the case of the assessee because the legal question as to whether there can be a gift on the occasion of marriage long after the marriage is celebrated was to be raised on basic facts as to which there is no dispute and which are admitted as undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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