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TMI Blog2001 (8) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 of the Transfer of Property Act, 1882. The Assistant Commissioner and the Tribunal took the same view and thereafter the following question of law was referred to the High Court (see [1985] 156 ITR 714) by the Tribunal : "Whether, on the facts and circumstances of the case, the Tribunal was justified in law in holding that no valid gift of out-houses of the building named as 'Deep Shikha' was made by the assessee to his wife in terms of the Gift-tax Act, 1958 ?" By the impugned judgment the High Court answered the question of law in favour of the respondent. It came to the conclusion that the definition of the word "gift" under the Gift-tax Act was wider than the definition of "gift" in the Transfer of Property Act and many acts and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequate consideration, the amount by which the value of the property as on the date of the transfer and determined in the manner laid down in Schedule II exceeds the value of the consideration shall be deemed to be a gift made by the transferor : Provided that nothing contained in this clause shall apply in any case where the property is transferred to the Government or where the value of the consideration for the transfer is determined or approved by the Central Government or the Reserve Bank of India ; (b) where property is transferred for a consideration which, having regard to the circumstances of the case, has not passed or is not intended to pass either in full or in part from the transferee to the transferor, the amount of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift. For instance, in cases falling under clause (a) of section 4 where the property is transferred for less than adequate consideration such a transfer would not be regarded as a gift under the Transfer of Property Act but would be regarded as a gift under the Gift-tax Act. What is, however, important is that there has to be a transfer of property and a transfer by reason of section 17 of the Registration Act can only be by way of a registered document. The respondent seeks to bring its case within the provisions of clause (c) or (d) of section 4. There can be no doubt in cur mind that surrender or forfeiture of an interest in immovable property as contemplated by clause (c) of section 4 or vesting of any property in another person as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shivarajkumar v. CGT [1981] 151 ITR 647 (Guj)). In the instant case, the High Court did not even refer to the provisions of the Registration Act and, theref6re, fell in error in coming to the conclusion that the case fell within the provisions of section 4 of the Gift-tax Act and, therefore, as it was a deemed gift it was not necessary that the document had to be registered. In our view, the general law did not stand abrogated and the requirement of complying with the provisions of the Transfer of Property Act and the Registration Act had to be fulfilled. The High Court, therefore, erred in answering the question of law in the negative and against the Revenue. For the aforesaid reasons, this appeal is allowed, the judgment of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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