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TMI Blog1973 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to refer certain questions arising out of the Tribunal's order to the High Court for the opinion of the High Court, the assessee had demanded that three questions as prayed for by him should be referred to the High Court. Out of those three questions, the Tribunal referred only one question and, thereafter the assessee has filed Gift-tax Application No. 1 of 1971, praying that the Tribunal should be asked to refer the remaining two questions also to the High Court for its opinion. In that gift-tax application, on November 2, 1971, this court directed that rule should be issued and it further directed that the rule should be heard along with the reference, and hence, we have heard both the matters together and we will dispose of both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been given by the Income-tax Appellate Tribunal to the Income-tax Officer to treat the Samvat year as the previous year of the assessee for income-tax purposes and, in pursuance of the directions of the Tribunal, the Income-tax Officer has written a letter to the assessee permitting the assessee to change the previous year from Samvat year to financial year, but on certain conditions, which he imposed in that letter. However, these conditions were not acceptable to the assessee and, thereafter, for income-tax purposes, the Samvat year was taken to be treated as the previous year. The decision regarding Samvat year to be adopted as the previous year was in connection with the assessment year 1960-61 and since that decision had been arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Commissioner of Income-tax for revision after the assessment for 61-62 wherein the gift is being taxed is confirmed in appeal. For the time being no tax collection will be made. " In its order, the Tribunal observed that no doubt the assessment appears to have been made on the basis that the financial year was the previous year, so far as assessment year 1960-61 was concerned. But it held that since the Gift-tax Officer had made that order as a provisional order, there was no determination of the question of previous year by the Gift-tax Officer finally within the meaning of the 2nd proviso to clause (xx) of section 2 and there was no final assessment for 1960-61, and hence, the contention on behalf of the assessee in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be charged for every assessment year commencing on and from the 1st day of April, 1958, a tax (hereinafter referred to as ' gift-tax ') in respect of the gifts, if any, made by a person during the previous year (other than made before the 1st day of April, 1957), at the rate or rates specified in the Schedule." Section 2, sub-section (xx), defines the "previous year" in relation to any assessment year and under clause (c) of sub-section (xx) in the cage of this particular assessee it would be the previous year as defined in section 3 of the Gift-tax Act, if the assessment is made under that Act for that year. The 2nd proviso to section 2(xx) is in these terms: "Provided further that where an assessment has been made under this Act for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60, could never have been then mentioned, It was only if S. Y. 2016 was taken as a previous year that the two gifts could have been clubbed together. It is clear that the first gift of December 2, 1959, was not made in S. Y. 2015 since that Samvat year ended on October 31, 1959. When, therefore, the assessment order made by the Gift-tax Officer on March 26, 1965, mentioned two previous, years, viz., 2015 and financial year 1959-60, since S. Y. 2015 was not applicable at all to the facts of the case, it must be presumed that he proceeded on the footing that the financial year was the previous year in the case of this assessee. The assessment order in terms mentions that the assessee had filed the gift-tax return declaring gift at Rs. 42,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf and, in view of that conclusion, it necessarily follows that it was not open to the Gift-tax Officer in any subsequent year to change the financial year as previous year for the relevant assessment years. Under these circumstances, it i s obvious that the Tribunal was not right in holding that there was no determination of the question of the previous year by the Gift-tax Officer finally within the second proviso to clause (xx) of section 2. When an assessment order is passed by the Gif t-tax Officer in respect of any particular assessment year treating a particular previous year as the previous year for that particular assessment year, the 2nd proviso to clause (xx) of section 2 comes into operation and for all subsequent assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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