H.N. Seth, J. - (1.) THIS petition under Article 226 of the Constitution is directed against three orders dated October 22, 1971, March 20, 1972, and September 17, 1973, passed by the Gift-tax Officer, A-Ward, Mathura, the Appellate Assistant Commissioner of Gift-tax, Range-II, Agra, and the Income-tax Appellate Tribunal, Delhi Bench "B", Delhi, respectively.
(2.) THE petitioner, Srinath Das, who is a partner in a firm known as Kishan Cold Storage, Mathura, filed a gift-tax return for the assessment year 1971-72, showing that he gifted a sum of Rs. 20,000 to one Sanjai Kumar, minor son of Sri Prithivi Nath, on 1st January, 1970. This gift was said to have been effected by debiting and crediting the respective personal accounts of the donor and the donee, maintained in the books of the firm. In due course the interest accruing on the aforesaid amount was also credited to the account of Sanjai Kumar. Income-tax payable on the interest accruing on the aforesaid amount gifted by the petitioner was, tinder Section 199(4) of the Income-tax Act, deducted at source and paid to the Government on behalf of the donee. Subsequently, on 31st May, 1972, the donee withdrew the entire amount from the said firm and deposited it elsewhere. The Gift-tax Officer held that the gift in question was invalid and inoperative inasmuch as the petitioner, as one of the partners in the firm, was not free to claim or exercise any exclusive right over the amount gifted and also because mere making of entries in the books of the firm did not result In delivery, symbolic or otherwise, of the amount gifted to the donee. However, as the petitioner had himself voluntarily filed a return showing the gift of Rs. 20,000, he was assessed to tax as a protective measure. After giving an allowance for gift amounting Rs. 5,000, he determined the value of the taxable gift at Rs. 15,000 and assessed him accordingly. Being aggrieved by the finding of the Gift-tax Officer that the gift in question was invalid, the petitioner filed an appeal before the Appellate Assistant Commissioner of Gift-tax, Agra. The Assistant Commissioner, by his order dated March 30, 1972, dismissed the appeal and affirmed the view expressed by the Gift-tax Officer that the gift in question was invalid. The petitioner then took the matter up before the Income-tax Appellate Tribunal, Delhi Bench. The Appellate Tribunal did not go into the question whether the gift, claimed to have been made by the petitioner, was valid and operative or not. It held that inasmuch as the petitioner's appeal before the Appellate Assistant Commissioner was not directed either against the value of the taxable gift determined under the Act or against the amount of gift-tax determined as payable by him nor did the petitioner deny his liability to be assessed under the Act, no appeal under Section 22(1) of the Gift-tax Act, 1958, lay against the order of the Gift-tax Officer dated October 22, 1971. As the petitioner had no right of appeal before the Appellate Assistant Commissioner there could also be no question of a second appeal to the Tribunal. In the result the second appeal filed by the petitioner was dismissed by the Tribunal on September 17, 1973.
(3.) THE petitioner filed the present petition under Article 226 of the Constitution before this court on 28th March, 1974, and prayed that the three orders passed by the Gift-tax Officer, Appellate Assistant Commissioner and the Income-tax Appellate Tribunal be quashed, and in case it is held that the gift in question was not valid the respondents be directed to refund the amount imposed and realised by them as gift-tax in connection with the gift in question. Learned counsel for the petitioner contended that in this case the appeals filed before the Appellate Assistant Commissioner and the Appellate Tribunal were competent and the Appellate Tribunal erred in not deciding the appeal filed before it on merits.;