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TMI Blog1993 (2) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... /1989 and 884/Ahd/1990. 3. The learned Departmental Representative objected to the propositions canvassed on behalf of the assessee and submitted that when in assessee's own case a Tribunal decision was available which considered all aspects of the matter in detail ordinarily that should be followed in subsequent years also. 4. From both the sides very detailed arguments were put forth on both the aspects of the matter viz. merits of the points involved independent of the view taken in the Tribunal's decision in earlier years and also on the aspect of the desirability of the Tribunal's order being followed. Ordinarily it is the second aspect which should be first dealt with but in this particular case for the facility of exposition it would be better to deal with the first aspect viz. the merits de hors the Tribunal's decision in earlier years. This is so because after appreciating the facts and the inferences to be narrated on the aspect of merits it would be easier to appreciate the second aspect of the desirability of departure from the earlier order of the Tribunal. Obviously, we have decided to depart from the view taken by the Tribunal in earlier years. The reasons, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 132 ITR 529 stood overruled. The learned C.A. submitted that now on merits the position was almost settled because according to him on this aspect there was no decision of any High Court to the contrary available on this date. He submitted that when the gift amount is received with specific stipulations that the same would be for the HUF of the assessee (comprising of himself. his wife and daughter(s) -- with no son) the gift should be treated as made to the HUF. He submitted that in the case of Surjit Lal Chhabda decided by the apex court it was the property of that very assessee whose character was sought to be changed while in the assessee's case the property itself was coming from a third person viz. assessee's father -- with specific stipulations of being treated for the HUF. 7. The learned Departmental Representative on the merits of the legal point did not have much to say. On facts, he pointed out that the Department was questioning the genuineness of the HUF itself coming into being and further that the stipulation of gifts being meant for HUF was perhaps contained in the gift-tax returns filed and not at the time of making of gifts themselves. On these factual aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-1-1989 the since overruled decision of the Hon'ble Madras High Court in M. Balasubramaniam's case was available though it was neither cited nor considered in the Tribunal's decision dated 19-1-1989. 9. This aspect apart, even if we go to the basic point of the effect of a donor's intentions in such matters the Hon'ble Supreme Court decision in C.N. Arunachala Mudaliar v. C.A. Muruganantha Mudaliar [1954] SCR 243 held and holds the sway. Extracts from that decision appear in the original decision of the Hon'ble Madras High Court starting from bottom of page 534 of the reports and they are concised beautifully in the Full Bench decision of the Hon'ble Madras High Court on page 124 of the reports in the following terms :--- " That a donor or a testator dealing with sell-acquired property may, by evincing the appropriate Intention, render the property gifted to assume the character of joint family property or, as the case may be, separate property in the hands of the donee vis-a-vis his male issue is now a settled proposition in view of the decision of the Supreme Court decision in C.N Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495. The primary rule deducible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Chhabda's case the assessee already held that property as an individual which he wanted to throw into the common hotchpot of the HUF and the Hon'ble Supreme Court held that until a son was born the character of the property would not change. The position is entirely different when the property is received from a different source, e.g. any gifts from others. This sort of clarification having been pointed out specifically in the Full Bench decision of the Hon'ble Madras High Court in the case of M. Balasubramanian it should provide adequate justification for departure from the earlier decision of the Tribunal. 12. The learned Departmental Representative emphasised first that the earlier decision of the Tribunal dated 19-1-1989 took note of the Hon'ble Punjab and Haryana High Court decision in Ghansham Dass Mukim's case but chose for the reasons given therein, not to follow it primarily on the footing that another decision of the apex court viz. Surjit Lal Chhabda's case was applicable. He therefore, submitted that on this aspect of the matter, there is no change and therefore, a Tribunal's decision in assessee's own case should be followed in these years also. He further argued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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