COMMISSIONER OF GIFT TAX Vs. P D KUMARESAN

JUDGEMENT

(1.) AT the instance of the Revenue, under section 26(1) of the Gift-tax Act, 1958 (hereinafter referred to as "the Act"), the Appellate Tribunal has referred in T. C. Nos. 361 and 362 of 1984, the following common question of law, for the opinion of this court in relation to the assessment years 1975-76 and 1976-77 with respect to the respondent assessee, P. D. Kumaresan "Whether, on the facts and in the circumstances of the case, the gifts made by the assessee of the amounts from fixed deposits, which the assessee held outside India, namely, England, together with interest to his daughters in India by directing the bank manager to mail transfer the proceeds to the donees, were exempt under section 5(1)(ii) of the Act for the two assessment years under reference?" * Likewise, at the instance of the Revenue, the said Tribunal has referred to this court the following question in T.C. Nos. 409 and 410 of 1984 in respect of the same assessment years with reference to the respondent-assessee, S. Rajaramalingam"Whether, on the facts and in the circumstances of the case, no portion of the gifts made by the assessee during the years is taxable and that the assessee is entitled to exemption under section 5(1)(ii)(a) of the Gift-tax Act for the assessment years 1975-76 and 1976-77?" * In T. C. Nos. 361 and 362 of 1984, the respondent assessee remains unrepresented and in T. C. Nos. 409 and 410 of 1984, the respondent-assessee is represented by counsel who vehemently made his submissions elaborately in support of the Tribunal's orderIt is clear that in both the sets of tax case references, the common issue involved is whether exemption under section 5(1)(ii)(a) of the Act could be granted to the assessees. In T. C. Nos. 361 and 362 of 1984, while the Gift-tax Officer rejected the exemption claimed by the assessee, the first appellate authority negatived the exemption for the assessment year 1975-76, and granted exemption for the assessment year 1976-77.

(2.) THERE were, therefore, two appeals to the Tribunal, one by the Revenue and another by the assessee and the Tribunal held that the assessee was entitled to the exemption in respect of both the assessment yearsIn T. C. Nos. 409 and 410 of 1984, while the Gift-tax Officer negatived the exemption claimed, the first appellate authority, and the Appellate Tribunal concurrently granted the exemption claimed in respect of both the assessment yearsLearned counsel for the Revenue mainly relies on the order dated April 17, 1996, of this court in T. C. No. 1248 of 1979 (CGT v. S. Raja Ramalingam 1997 (227) ITR 622, 1997 (137) CTR 662, 2000 (113) TAXMAN 263) relating to the abovesaid assessee, Rajaramalingam himself, and also the decision in CGT v. K. A. Abdul Kader 1996 (217) ITR 780, 1996 (134) CTR 141 (Mad) relating to some other assessee and submits that in view of the said decisions, in all these four tax cases, the questions have to be answered in favour of the Revenue. However, learned counsel for the respondent-assessee in T. C. Nos. 409 and 410 of 1984, despite the similarity of facts between the said (CGT v. S. Raja Ramalingam (supra) and CGT v. K. A. Abdul Kader (supra) on the one hand and T. C. Nos. 409 and 410 of 1984, on the other hand, sought to make elaborate arguments, contending that the question referred to us should be answered in favour of the assessee, RajaramalingamIn the above circumstances, we took up initially T. C. Nos. 409 and 410 of 1984 and heard the arguments of both the sides.

(3.) THE above view was taken in T. C. No. 1248 of 1979 (CGT v. S. Raja Ramalingam (supra) relying on the above referred to earlier decision in (CGT v. K. A. Abdul Kader (supra) and other decisionsBefore us, learned counsel for the Revenue submits that the decision in T. C. No. 1248 of 1979 (CGT v. S. Raja Ramalingam (supra) fully covers the present case which only deals with subsequent assessment years in relation to the same assessee and the facts being not in any way materially different. According to him, therefore, the question must be answered likewise in this case also in favour of the Revenue. Further, the said learned counsel also points out that the gifts are complete only when they are accepted by the donees, and till then, it cannot be said that the "transfer" spoken to in section 2(xii) of the Act which defines the term "gift", has been "made". So, according to the said learned counsel, if the gifts are to be exempted from tax under section 5(1)(ii)(a) of the Act, it has only to be seen where actually the movable property in question is situate at the time when the gift is so complete.