TaxTMI 
TaxTMI 
1973 (4) TMI 27
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....passed to his wife and children, who figure as executees in the document, and possession and enjoyment of the properties also remained with him. The Gift-tax Officer, refusing to accept the assessee's contention, proceeded to value the properties and levy gift-tax as per his order dated July 29, 1966 (annexure " B "). The assessee filed an appeal before the Appellate Assistant Commissioner, who, by his order dated January 17, 1968 (annexure " D "), confirmed the Gift-tax Officer's order. There was a further appeal to the Tribunal, who, as per order dated July 10, 1968 (annexure " C "), sent the case back to the Appellate Assistant Commissioner directing to decide the case de novo. The Tribunal was of the view that the material questions arising in the case such as whether the document purported to and did in fact convey title, whether the title deeds still stood in the name of the assessee or of the alleged donees, whether pattas were transferred and if so, when and to whose names, whether the income from the properties continued to be enjoyed by the assessee, whether, notwithstanding the execution of the document, the assessee continued to be in possession and enjoyment of the pro....
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....any right to object to her taking and enjoying the said properties and after her death the respective sharers in B to E ; the rest have to take possession and enjoy the properties with complete right of alienation. 8. If any document is to be executed during my lifetime only the documents executed by myself and the respective sharers would be valid and after my death if any document is to be executed in respect of A schedule property my wife, Bhargavi Amma, has got full and exclusive right to do so and the consent of Ambika Devi is not necessary and after the lifetime of Bhargavi Amma the entire properties comprised in A schedule will devolve on Ambika Devi. " The learned counsel for the revenue urged before us the following points : (1) that section 4(1)(b) of the Gift-tax Act, 1958, governs the transaction ; and (2) that the document in question in any event evidences a gift as defined in section 2(xii) of the Act. Taking up the first point, we are of the opinion that a mere reading of section 4(1)(b) is sufficient to see that the transaction does not fall within the purview of that provision. Section 4(1)(b) is as follows : " 4. (1) For the purposes of this Act,-...... (....
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....ree New Taxes, volume 2, 1972, 3rd edition, paragraph 16, at page 51. The learned author says therein that, under the English law, to constitute a valid gift, communication of the gift by the donor to the donee is not necessary, whereas, under section 122 of the Transfer of Property Act, the position is different, in that that section requires acceptance by the donee for constituting a valid gift. The learned author further says that "under the Gift-tax Act, however, the language of the definition of 'gift' approximates the English view that neither communication to, nor knowledge of, the donee is necessary......So, the imposition of gift-tax would operate as from the date of the donor having perfected the gift on his part ". The learned author does not rely on any decision. We feel considerable doubt about the aforesaid view especially in view of the definition of "donee " (section 2(viii)) " as a person who acquires any property under a gift ". The meaning of the word " acquire " as given in Chamber's Twentieth Century Dictionary is " to gain ; to attain to " ; Shorter Oxford English Dictionary gives the meaning as : " acquire : 1. To gain, to get as one's own (by one's own exert....
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....ne or more other living persons, or to himself, or to himself and one or more other living persons ; and 'to transfer property' is to perform such act. " The body of section 2(xxiv) of the Gift-tax Act says that any disposition, conveyance, assignment, settlement, delivery or other alienation of property is a transfer of property. The words " or other alienation of property " is a clear indication that the transactions indicated by the words it conveyance, assignment, settlement and delivery " preceding the words " or other alienation of property " are also " alienations ". This means that all the transactions enumerated in the body of section 2(xxiv) are alienations and, therefore, at least bilateral transactions. The Supreme Court had occasion to consider this provision in Goli Eswariah v. Commissioner of Gift-tax. In that case the karta of a joint family executed a deed whereby he threw into the common stock some of his self-acquisitions. The Tribunal held that this did not amount to transfer within the meaning of section 2(xxiv) of the Gift-tax Act. On a reference to the High Court, it was held, following an earlier decision of that court in Commissioner of Gift-tax v. Satyan....
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....e things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, much invariably be attached to these words or expressions. " We are of the view that section 2(xxiv) of the Gift-tax Act uses the inclusive device for the third purpose enumerated by Raman Nayar, Actg. C.J., viz, only by way of abundant caution, so as to put beyond doubt that the transactions listed in sub-clauses (a) to (d) do come within the definition of "transfer ". In other words, the word " includes " in section 2(xxiv) is equivalent to " mean and include ", the second meaning given to the word by Lord Watson. Looking at these sub-clauses, it will be seen that the transactions enumerated are all bilateral transactions. Besides, the phrase " without limiting the generality of the foregoing " cle....
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....Commissioner of Gift-tax. In that decision also section 2(xxiv) of the Act came up for consideration. It is said in that decision that the words, conveyance, etc., mentioned in section 2(xxiv) " though undoubtedly wide, are referable only to those cases where there is passing of ownership of property or interest in property from one person to another...... " From this passage also it is clear that, unless ownership of property or interest in property passes from one person to another, there can be no transfer of property as contemplated in section 2(xxiv) of the Act. We have had not the advantage of seeing the original document which is in Malayalam. The document describes itself as a deed of settlement. The learned counsel for the revenue invited our attention particularly to clauses 5 to 8. Clause 5 says that the executant (assessee) has come to the conclusion that he should effect an arrangement during his lifetime itself and hence the document is being registered. In clause 6 he says that the properties have been divided by him and are included in five schedules as A to E ; " A schedule to my wife, Bhargavi Amma, and minor, Ambika Devi, and B schedule to my son, Govindan Nair,....