TMI Blog1982 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonableness or otherwise of the amount of gift when not challenged by any member or members of the family whose interests are affected, could be said to be a void gift ab initio ? The material facts are these: M/s. Kanhaiya Lal Pyare Lal, assessee, is an HUF with Pyare Lal as its karta. The coparcenary consisted of Pyare Lal and his two sons. Smt. Bimla Devi and Smt. Shashi Prabha Devi are the wives of those sons. The accounting period of the assessee relevant for the assessment year 1961-62 was from July 8, 1959 to June 26, 1960. The opening balance daring this year was Rs. 1, 18,697 ; interest and profit were further credited during this accounting period. On July 8, 1959, transfer entries were made in the account books of the HUF w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal. The Income-tax Appellate Tribunal refused to make a reference and, therefore, the assessee moved this court and obtained a reference of the aforesaid questions. The AAC took the following circumstances into consideration to come to the conclusion that in reality there were no gifts : "1. The gifts were alleged to have been made through book entries on 8-7-59 but up to the assessment year 1965-66, the interest treated as paid by the HUF to the ladies was being disallowed. The assessee never questioned that the interest did not belong to the HUF. For the assessment year 1965-66 the matter went up to the Income-tax Appellate Tribunal and this ground was not pressed before the Tribunal. 2. The assessee never filed any gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the capital of the HUF and the gifts were not reasonable. Question No. 1 relates to only two points, namely, whether the gifts were not accepted by the two ladies and whether they had no possession or control over the amounts gifted to them. The gifts were said to have been made on July 8, 1959, by making transfer entries in the books of the HUF. The amounts remained in the possession of the HUF, there is no document to indicate that the gifts were brought to the notice of the two ladies and that they had signified their acceptance of the gifts. Before us reliance has been placed on two entries made in the previous years relevant to the assessment years 1963-64 and 1965-66 to show that the gifts were acted upon and the donees had ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cases are likely to be similar and, therefore, there can be no precedential guidance on questions of fact. The facts and circumstances in the case of Gopal Raj Swarup and all other cases discussed in that case were entirely different and, therefore, they are of no help for our present purpose. In Brij Lal Lohia's case [1972] 84 ITR 273 (SC), the Supreme Court laid down that the decision of the Tribunal reached in earlier proceedings did not operate as res judicata and the Tribunal could, on the strength of the additional material placed before it, take a different view on the question of gifts. In earlier proceedings, the Tribunal had, on a consideration of the facts and circumstances which were placed before it, taken the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fts on the ground of res judicata and not on the basis of the material on the record. Hence, this decision too has no application to the facts of the present case and cannot help the assessee. Now, we turn to the two debit entries of Rs. 2,500 and Rs. 2,600 which are the sheet-anchor of the case of the assessee. The entries in the account books of the HUF were nothing but the own acts of the assessee. There was nothing to indicate that these entries were made at the instance of the two ladies concerned. While making the assessment for the assessment years 1963-64 and 1965-66, the ITO had not accepted these entries as evidence of the fact that the gifts were acted upon. The assessee did not challenge the order regarding the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that in reality there were no gifts. He based his conclusion on other circumstances which have been set out earlier. The grounds on which the Income-tax Appellate Tribunal sought to affirm the order of the AAC too have been set out earlier. The Tribunal no doubt mentioned that the gifts were not of reasonable amounts as they represented almost 2/3rds of the capital of the family, but it is clear from the discussion that the Tribunal had not attached much importance to this circumstance in upholding the conclusion of the AAC that in reality there were no gifts; the other circumstances which were discussed at length were the main circumstances on which the order of affirmation was passed. In these circumstances, the answer to question No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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