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TMI Blog1972 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that section 5(3) of the Gift-tax Act, 1958, applied to the gift under consideration and that the gift was liable to tax under the Gift-tax Act, 1958 ? " The gift in question was by a deed dated April 7, 1964, executed by the wife in favour of the husband. Earlier, she had obtained this property from her husband by a deed of gift dated April 26, 1957. This gift dated April 26, 1957, was exempted from tax under section 5(1)(viii) of the Act. Section 5(1)(viii) at the time of the later gift ran thus : "5. (1) Gift-tax shall not be charged under this Act in respect of gifts made by any person--. . . (viii) to his or her spouse, subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t we have quoted above. This, we consider, would not be justified, for, if we do so, in the guise of interpreting the section, we will be amending it. Counsel also emphasised the expression " as fall within clause (viii) " and it was contended that " as fall within clause (viii) " indicates something that had accrued in praesenti and not in the past as in that case the expression would have been " as fell within clause (viii) ". We do not see much force in this contention because even if the original gift by the husband to the wife was in the previous year, the word could be " fell " because with reference to the time of the latter gift the earlier one is anterior. "As fall within clause (viii) " , therefore only means the gift to which cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (3) is attracted notwithstanding the provisions in sub-section (1) or (2). So for the gift in question, the one dated April 7, 1964, exemption under clause (viii) of sub-section (1) of section 5 is not available. If it is not available, tax will have to be paid. We, accordingly, answer the question referred to us in the affirmative, that is, against the assessee and in favour of the department. We direct the parties to bear their respective costs. A copy of the judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, as required by sub-section (6) of section 26 of the Act. Question answered in the affirmative. - - TaxTMI - TMITax - Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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