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TMI Blog1961 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... Samvat years, one commencing from 22nd October, 1949, and ending with 8th November, 1950, and the other commencing from 9th November, 1950, and ending with 1st October, 1951. Prior to these accounting years, the assessee was a partner in a firm consisting of himself and his sons, carrying on business under the name and style "Messrs. Paliram Mathuradas & Sons". On the retirement of the assessee from the partnership, it was found that a sum amounting to ₹ 1,13,000 was due from the firm to the assessee, and at the beginning of the year, i.e., on 22nd October, 1949, that amount was credited in the name of the assessee. That account of the assessee was debited with a sum of ₹ 50,000, and the accounts of two grandsons of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by section 130 of the Transfer of Property Act; and there being no such document, no valid gift in law came into existence. In this view of the matter, the Appellate Assistant Commissioner dismissed the appeal. A second appeal was taken to the Tribunal. It was contended before the Tribunal that the gift was made by the assessee in favour of his two grandsons at the commencement of the year, commencing from 22nd October, 1949, and ending on 8th November, 1950, and the entries in the books of account would establish that fact. The Tribunal held that the entries were in the nakalbahi. The entries were not made in the beginning of the year, but they were made at the end of the year. The entries, therefore, did not corroborate the story put forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Property Act. There being no instrument, there was no valid transfer in favour of the two grandsons. In this view of the matter, the Tribunal dismissed the appeal of the assessee. The Tribunal in its order has also recorded that before it the assessee had tried to put in an affidavit of one of the grandsons, namely, Doongersey, that he had accepted the gift. The Tribunal did not allow the assessee to had further evidence. On an application made by the assessee under section 66(1) of the Income-tax Act, the Tribunal has referred the following two questions to this court: "(1) Whether, on, the facts and in the circumstances of this case mere book entries transferring the amount of ₹ 50,000 from the account of the assessee to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee wanted to raise such a contention, he should have raised it at a proper stage. The affidavit of Doongersey, in the circumstances, was properly rejected by the Tribunal. In the alternative Mr. Mehta argues that the Tribunal has found that the entries were, in fact, made at the end of the year commencing from 22nd October, 1949, and ending with 8th November, 1950. That being the fact found, and there being no finding by the Tribunal that these entries were made without any instructions, the Tribunal should have held that, at any rate, a valid gift came into being at the end of that year. It is difficult to accept this contention also. It would not be correct reading of the order of the Tribunal to say that the Tribunal has found or acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be paid, and as a result of such an agreement a new valid agreement may come into being, whereunder, the debt of the creditor is paid by the debtor making payment to the third party. Now, in our opinion, there is no foundation for such an argument in this case. At no time it had been stated that the assessee, the partners of the partnership firm and the two grandsons came together and agreed that the debt due by the partnership to the assessee should be treated as partly satisfied if the partnership paid ₹ 50,000 to his two grandsons, ₹ 25,000 each. This contention is founded on assumption of facts which have not been established in this case. It has therefore to be rejected on the material on record. In the result, the answe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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