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Smt Meenakshi Devi Avaru Versus The Gift Tax Officer, Ward-7 (1) , Bangalore

2015 (10) TMI 1004 - ITAT BANGALORE

Validity of assessment under Gift Tax act - period of limitation - contention of the counsel that the AO must have made a ‘fresh assessment’ within the time limit prescribed u/s 16A(3) of the GT Act, 1958 and not an ‘assessment or re-assessment’ that is referred to under the provisions of section 16A(4) of the GT Act, 1958 - whether case is time barred u/s 16A(3) of the GT Act, 1958? - Held that:- CGT(A) having received the order on 27-05-1999, ought to have passed the order before 31-03-2004 wh .....

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ected against the order of the Commissioner of Gift Tax (A), Bangalore dated 19-11-2013 for the assessment year : 1981-82. 2. The assessee was served with notice u/s 16(1) of the GT Act for the relevant assessment year. The assessee filed the return declaring NIL gift. 2.1 The facts of the case are that the assessee is one of the daught4ers of late Maharaja of Mysore Sri J.C.Wadiyar. There was partial partition in the family of Sri J.C.Wadiyar in which some properties were allotted to his son Sr .....

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ll his properties and thus the remaining properties exclusively belong to him. While the suit was pending, Sri J.C.Wadiyar dies on 23-09-1974. 2.2 Accordingly the learned assessing authority was of the opinion that the assessee had 1/14th share in the properties of HUF. Similarly, the learned assessing authority also was of the opinion tht the assessee had 1/7th share in the assets of the minor HUF of late Sri J.C.Wadiyar. 2.3 In the meanwhile, the suit filed by Sri S.N.Wadiyar was compromised A .....

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ly, the assessee had 1/14th share in the properties of the HUF and also 1/7th share of the properties in the minor HUF. The revenue has accordingly held that by surrendering their shares in the HUF in favour of the brother by the sisters, there was a deemed gift as contemplated u/s 4(1)(c ) f the Gift Tax Act, 1958 and accordingly the learned assessing authority valued the assets of the HUF and determined the gift for gift tax. The matter was taken to the Appellate Authorities and the Hon ble Tr .....

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f the assessee is to be computed at ₹ 1,41,81,620/-. 4. Aggrieved the assessee preferred an appeal before the CGT(A). The CGT(A) dismissed the appeal of the assessee. 5. Aggrieved, the assessee is in appeal before us raising the following grounds; 1. The order as passed by held.CGT(A) is against the law and facts of the case. 2. The ld.CGT(A) ought to have appreciated that the Hon ble ITAT vide its order dated 26-11-1998 in GTA No.29(Bang.)/1990 set aside the assessment to be redone to ena .....

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d beyond the limitation imposed u/s 16A(3) of the Act, the ld.CGT(A) ought to have declared the said orders as null and void. 5. The ld.CGT(A) ought to have appreciated that even if the compromise deed dated 07-08-1980 was not to be considered, still there was no gift during the relevant financial year which is amenable to Gift Tax Act. 6. Even assuming that the compromise deed is a family arrangement amongst the parties, there is no gift as there being no transfer and consequently, no gift tax .....

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he had no right in the property and what remained belonged only to the alleged donee and consequently there is no element of gift which is amenable to gift under the Act. 8. The ld.CGT(A) ought to have appreciated that he maxims nemo dat qui non habet (no one can give who dares not possess) and nemo dare protest quod non habet (no man can give that which he has not) were squarely applicable to the facts and circumstances of the appellant. 9. Without prejudice, the ld.CGT(A) ought to have appreci .....

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ion that Sec.16A(3) which reads as under; Notwithstanding anything contained in subsection( 1)(and (2), an order of fresh assessment in pursuance of an order passed on or after the 1st day of April, 1975 u/s 22, section 23or section 24, setting aside or cancelling an assessment may be made at any time before the expiry of (two years) from the end of the financial year in which the order u/s 22 or 23 is received by the Chief Commissioner or Commissioner) or, as the case may be, the order u/s 24 i .....

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