TMI Blog1973 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... 1960-61 is an assessment within the meaning of the second proviso to section 2(xx) of the Gift-tax Act, 1958?" At the time when the application was made by the assessee to the Appellate Tribunal 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Assistant Commissioner, the matter was taken in appeal by the revenue before the Tribunal. On behalf of the revenue it was urged before the Tribunal that in income-tax proceedings a direction 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 take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner's order in income-tax assessment order these two gifts fall in period, S.Y. 2016. Therefore, this assessment is made on provisional basis and if necessary the case will be submitted 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-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy before us, it is necessary to refer to a few provisions of the Gift-tax Act. Section 3 is the charging section and it provides: "Subject to the other provisions contained in this Act, there shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1960. It is obvious that Samvat year 2015 was not the previous year. The previous year not only was S. Y. 2016 but in that case the other year which was the financial year April 1, 1959, to March 31, 1960, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the second proviso to clause (xx) of section 2, we must proceed on the footing that for the assessment year 1960-61, the previous year was treated as the financial year by the Gift-tax Officer himself 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 assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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