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TMI Blog1996 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... d the share on that basis, the cases are heard analogously and are being disposed of by this common order. In Miscellaneous Civil Case No. 41 of 1987, the undernoted question of law, arising out of G. T. A. No. 10/(Ind) of 1984 decided on April 14, 1986, and connectible with R. A. No. 46/(Ind) of 1986 for the assessment year 1974-75, is submitted for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee as per deed dated November 12, 1973, made a taxable gift within the meaning of the Gift tax Act, 1958 ? " In Miscellaneous Civil Case No. 200 of 1987, the undernoted question of law, arising out of G. T. A. No. 9/(Ind) of 1984, decided on December 4, 1986, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on December 23, 1967. Thereafter, his widow, the assessee, Mrs. Banoo Cowasji, by a deed of release dated November 12, 1973, released her right, title and interest in the trust properties in favour of the other three beneficiaries, namely, her son and two daughters. The Gift-tax Officer treated this release deed as gift within the meaning of clause (xii) read with clause (xxiv) of section 2 of the Gift-tax Act. He accordingly valued the 1/4th share of the assessee in the corpus of the trust as also the beneficial interest (life interest) of the assessee in the income of the trust and took the total of the two as the value of the gift. The assessee filed an appeal. The Commissioner of Gift-tax (Appeals) held that it was not a gift and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court will ipso facto vanish because it is evidently consequential in nature. He placed reliance on CGT v. Mrs. Jer Mavis Lubimoff [1978] 114 ITR 90 (Bom) and CGT v. Smt. Ansuya Sarabhai [1982] 133 ITR 108 (Guj). Shri Vyas, on the other hand, submitted that it was clearly a gift within the meaning of section 2(xii) of the aforesaid Act and as such the Tribunal was justified in treating the release deeds as gift under the Act. Section 2(xii) of the Act provides as under : (xii) ' gift ' means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer or conversion of any property referred to in section 4, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, apply. The deed of poll and the document of release did not amount to a gift taxable under the Act." In CGT v. Smt. Ansuya Sarabhai [1982] 133 ITR 108 (Guj), it is held under (headnote) : " Held, that the release deed in question did not effect any gift, bilateral or multilateral, between the parties as contemplated by section 2(xii) read with section 2(xxiv)(d) of the Gift-tax Act. Nor was the Revenue able to show by arriving at any positive finding that the transaction was not a bona fide one and hence, was a deemed gift within the meaning of section 4(1)(c) of the Act. The transaction effected by the release deed was not taxable under the Gift-tax Act. " Counsel for the Department could not show any provision in the trust d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant/Department. (b) As regards Miscellaneous Civil Case No. 200 of 1987, we hold that the Tribunal was not right in law in holding that the assessee as per deed dated March 28, 1973, made a taxable gift under the Gift-tax Act, 1958. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. (c) As regards Miscellaneous Civil Case No. 44 of 1989, we hold that the question of share to the extent of 1/4th becomes irrelevant in the face of our answer as noted above. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. The aforesaid three miscellaneous civil cases are thus decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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