COMMISSIONER OF GIFT TAX Vs. S MOHAMMAD HUSSAIN

JUDGEMENT

(1.) AT the instance of the Department, the Tribunal referred the following common question of law, for the asst. yrs. 1975 -76 and 1976 -77, under S. 26 of the GT Act, 1958, for the opinion of this Court :

(2.) THE assessee sent a sum of Rs. 75,000 for the asst. year 1975 -76 and a sum of Rs. 30,000 for the asst. year 1976 -77, by a bank draft from a foreign country, in favour of his wife. The wife encashed the drafts and gave the money to the major sons according to her husband's wish. The GTO was of the opinion that inasmuch as the gift was made in Indian rupees, withdrawn from the bank account of the assessee's wife after encashment of the drafts sent by her husband, the gifts took place in Indian taxable territories, attracting the provisions of the GT Act and hence exemption under S. 5(1)(ii) was not admissible in this case. On appeal, the AAC followed the decision of the Tribunal in GTA Nos. 58 -59 (Madras 77 -78), dt. 26th April, 1978, and allowed the claim. In so doing, he was of the view that whether the gift by the assessee was to the wife or indirectly to the children makes no difference to the real issue whether the gift was made by the assessee abroad and thus exempted from the GT Act. In the appeals, it was stated that on the basis that the gifts were made to the wife only, separate proceedings are being taken to assess the transfer of the money by the wife to the children as gifts made by the wife in India. Therefore, the grounds of appeal objecting to the observations of the AAC as to whether the gift by the assessee was to the wife or indirectly to the children was not considered. But according to the AAC it makes no difference to the real issue before him whether the assessee could have made a gift in India. On appeal, the Tribunal, following its earlier view on this aspect, held that when the assessee purchased a draft in the name of another person in America by handing over American dollars to the bank, the gift must be considered to have taken place in America by treating the bank as the agent of the donee, since remittance in India could be done only through authorised dealers, viz., the banks. The Tribunal further pointed out that even if it is possible for the Revenue to argue that a gift of movable property is complete only by delivery and, in the present case, since the cash was received by the donee in India the gift must have taken place in India only, the Tribunal did not want to depart from the view taken by it from earlier decision.

(3.) WE have heard learned standing counsel and also perused the records carefully. The fact remains that the assessee purchased the demand drafts in an American bank by paying US dollars. The drafts were sent to his wife in India for the purpose of making payments to his sons. The wife encashed the drafts and paid the amounts to her sons. There was no request either by the wife or by the sons to make a gift. No letter was sent by them to the assessee who is in the USA In such a case it cannot be said that the post office through which the drafts were sent acted as an agent of the donor. In such a case the gift would have been completed within the American territory. But there was no such request made by the donees in the present case. To make a valid gift, there must be delivery of possession in the case of movable articles. In the present case, delivery of possession took place only in India where the drafts were encashed and payments were made. Therefore, the gift was completed within the Indian territory, and the gift -tax is leviable. This was the view taken by this Court in T.C.R. No. 1248 of 1979 (supra). The said case arose out of the order of the Tribunal passed in GTA No. 58/Mad/1977 -78 dt. 26th April, 1978, which was followed by the Tribunal in the present case.