TMI Blog1997 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is right in law in holding that it cannot be said that it was a mistake apparent on the face of the record and the Gift-tax Officer could not rectify the order passed under section 15(3) and withdraw the exemption allowed under section 5(1)(viii) of the Gift-tax Act in the case of the Hindu undivided family?" The brief facts giving rise to this petition reveal that the assessee, Shri Jinendra Kumar Jain, the respondent herein, is the karta of his Hindu undivided family. He filed a return declaring a gift of Rs. 50,000 which he had made to his wife, Smt. Shashi Bala Jain. He claimed deduction of Rs. 50,000 under section 5(1)(viii) of the Gift-tax Act and the taxable gift, therefore, was declared as nil. The assessment was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least it could not be said that it was a mistake apparent on the face of record. The order of the Income-tax Tribunal was not accepted by the Department and a reference application under section 26(1) of the Gift-tax Act was filed relating to the question of law mentioned above. The Tribunal vide its order dated May 30, 1988, declined to refer the question of law to this court and rejected the reference application filed by the Department. It is in these circumstances that the present petition under section 26(3) of the Gift-tax Act for referring the question mentioned above has been filed. Mr. Sawhney, learned senior counsel representing the petitioner, has canvassed before us that exemption under section 5(1)(viii) was not available in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : "If there is a decision on a particular point by the High Court of a State, it is binding on the income-tax authorities in that State and merely because there is some judicial divergence of opinion on that point between some High Courts, it cannot be said that there is still scope for a debate on the point and that, therefore, section 154 of the Income-tax Act, 1961, is not attracted to the case." Learned counsel also relies upon yet another decision of the Allahabad High Court in Devendra Prakash v. ITO [1969] 72 ITR 151, wherein it was held as follows : "It is clear, therefore, that the Income-tax Officer does not have to shut his eyes completely to all extraneous matters when judging whether a particular assessment reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Harbhajan Singhs case [1979] 119 ITR 542, he had nothing at all to urge. We have carefully examined the records and have heard learned counsel representing the parties. We are in respectful agreement with the view expressed by the Allahabad High Court in Omega Sports and Radio Works' case [1982] 134 ITR 28, as also the decision of this court in Mohan Lal Kansal's case [1978] 114 ITR 583. Following the decision in the two cases referred to above, we hold that it was not a case of divergence of opinion inasmuch as the opinion expressed by this court was binding upon the Tribunal. Consequently, we allow this petition and direct the Tribunal to refer the following question of law to this court for its opinion : "Whether, on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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