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TMI Blog2004 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... r valuation made by the Valuation Officer under section 15 (6) of the Act is correct or not. - Gift-tax Appeals Nos 2, 3 and 4 of 2002 - - - Dated:- 21-1-2004 - Judge(s) : K. S. RADHAKRISHNAN., PIUS C. KURIAKOSE. JUDGMENT The judgment of the court was delivered by K.S. RADHAKRISHNAN J. - G.T.A. No. 2 of 2002 arises out of the order in G.T.A. No. 3/Coch of 2000 relating to the assessment year 1996-97. The appellant therein is one Azad Rahim son of Mrs. Fathima Rahim. G.T.A. Nos. 3 of 2002 and 4 of 2002 arise out of G.T.A. Nos. 1/Coch of 2000 and 2/Coch of 2000, respectively. G.T.A. No. 1 of 2000 was preferred by Mrs. Fathima Rahim as the legal heir of the late Sri A.A. Rahim and G.T.A. No. 2/Coch of 2000 was preferred by Mrs. Fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttees shall not assign the properties without their consent and if they do so, the alienation would be void. It was stated that the transaction did not satisfy the conditions laid down for Muslim gifts and there is no declaration of gift which is necessary to constitute Muslim gift. There should also be complete relinquishment by the donor of ownership. There is a clause prohibiting complete alienations without consent and treating such alienations as void. Since the ingredients of a valid gift are absent, there is no element of gift involved in the transaction by the assessee. We have already indicated in G.T.A No. 3/Coch of 2000, the assessee is the son of Fathima Rahim. The assessee's mother, Smt. Fathima Rahim, filed a return on Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the appellant submitted that the Tribunal has committed an error in holding that the gift was valid. According to counsel, as per document styled as settlement deed no title has passed on to the alleged donees. Further it is also stated that the donors have not transferred the right in the building situated in the property belonging to the trust. It is also submitted that there is no transfer of possession of building or properties. Counsel also submitted that the valuation was not properly conducted with a notice to the assessee. Counsel for the Revenue, on the other hand, contended that the provisions of the Transfer of Property Act are not applicable to Muslim gifts. Counsel appearing for the appellant placed reliance on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2] 85 ITR 249 (AP) it has been held that the scope and ambit of the Gift-tax Act is of wider import than that of the Transfer of Property Act. In that case it was held that a deferred interest granted to the assessee's son in a property after the death of his wife is taxable under the Gift-tax Act. We have perused the document in question. The preamble to the deed indicates that the gift has been made by the donor voluntarily without any consideration. It is true that in page 3 of the document, the document is described as Bhagapathram that is, the partition deed. A partition deed is valid only if a pre-existing legal right at least a portion of the property being partitioned. The properties involved in the document exclusively belong to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the year 1993-94 at Rs. 37,000 and for the year 1996-97 at Rs. 74,80,750. Demand made was Rs. 20,424 and Rs. 26,03,297, respectively, for the years 1993-94 and 1996-97. As far as Azad Rahim is concerned the Department assessed tax at Rs. 26,23,721 together with interest. Counsel appearing for the appellant submitted that the valuation was made without notice to the appellant though it is stated by the representative that notice was issued to them and that they were not present. Considering the facts and circumstances of the case, we feel it only just and proper that an opportunity be given to the parties to file objection to the valuation made for the year 1996-97. Counsel submitted that the appellant had in fact filed objection to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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