2000-(158)-CTR -0005 -MAD

THULASIMANI AMMAL v. COMMISSIONER OF INCOME-TAX & ANR.

Writ Petn. No. 11242 of 1987, decided on September 30, 1999.

HIGH COURT OF MADRAS

P. P. S. Janarthanaraja, for the Petitioner : C. V. Rajan, for the Respondents

ORDER

N. V. BALASUBRAMANIAN, J. :

The writ petition is filed challenging the order of the CIT, Coimbatore rejecting the revision petition filed by the petitioner under section 24 of the GT Act, 1958.

2. The facts leading to the filling of the writ petition are that the petitioner on 8th June, 1970 had made a settlement of some of her lands in favour of her daughter and as per the guideline value maintained by the Registration Department of the State of Tamil Nadu, the value of the land was taken to be Rs. 1,20,180 for the purpose of registration of the deed.

The petitioner filed a return of gift for the asst. yr. 1970-71 on the ground that the settlement deed was executed on 12th February, 1970 and the donee was also put in possession of the land thereafter and the donee was rightly in the possession of the land since the date of execution of the deed of settlement.

The case of the petitioner was that since the gift was made during the financial year 1969-70, the relevant assessment for levy of tax would be 1970-71 and there was no obligation on her part to file the return of gift for the asst. yr. 1971-72.

The GTO has not accepted the submission of the petitioner and held that the registration of the dead of settlement settling the immovable property took place on 8th June, 1970, and the gift was properly chargeable under the GT Act for the asst. yr. 1971-72. In this view, he determined the value of the property gifted at Rs. 1,30,000 and made an assessment of the gift made for the asst. yr. 1971-72.

3. The petitioner preferred a revision petition before the CIT challenging the order of assessment. The CIT was of the opinion that the ownership of the immovable property would pass after the deed of settlement is registered by the appropriate authority and the fact that the donee was put in possession on 12th February, 1970 is not material and the ownership over the gifted property would pass only on 8th June, 1970, when the settlement deed was registered, which fell during the financial year 1970-71 relating to the asst. yr. 1971-72. He, therefore, held that the GTO was justified in levying gift-tax for the asst. yr. 1971-72. The CIT was also of the opinion that the value fixed by the GTO was not correct.

He also held that the value of the property as claimed by the petitioner at Rs. 83,330 cannot be accepted in the absence of any evidence and he determined the market value of the property at Rs. 1,20,180, on the basis of the guideline value of the Registration Department and allowed the petition in part. It is against this order, the present writ petition is filed on the ground that by virtue of section 47 of the Registration Act, 1908, once registration of the document is effected, the title would relate back to the date of execution of the deed and the transaction would become complete when the document was registered. According to the petitioner, it is stated that the registered document would operate from the date of execution as it has retrospective effect to the date of execution of the deed.

It is, therefore, stated that the order of the CIT holding that the ownership would only pass after the registration of the deed of conveyance is not sustainable in law. It is also stated that the GT Act is a complete code and it is not necessary to look into the provisions of other Acts, when the gift is complete under the GT Act. It is stated that as per the valuation report filed by the petitioner, the value of the land was fixed and there are no grounds to discard the valuation report and the order of the CIT holding that no evidence was produced by the petitioner as regards the valuation of the land was not correct. It is further stated that the petitioner is entitled to the relief under section 18A of the GT Act.

4. Mr. P. P. S. Janarthana Raja, learned counsel for the petitioner submitted that when a gift of an immovable property takes effect, what has to be seen is whether there was a gift under the provisions of the GT Act, and it is not open to the GTO or the revisional authority to take note of other Acts to determine the question when the gift would become complete. According to the learned counsel for the petitioner, under the provisions of the GT Act, the gift would become complete when it was executed and the property was handed over to the donee. In this connection, learned counsel referred to the amendment made to the definition “gift” under section 2(xii) of the GT Act and submitted that though the Explanation was introduced by the Finance (No. 2) Act, 1987, w.e.f. 1st April, 1988, it gives a clue that under the GT Act, the word, “gift” is widely defined and it is not open to the respondents to look into other Acts to find out when the gift becomes complete. Learned counsel for the petitioner relied upon the decision of Rajasthan High Court in the case of Sirehmal Nawalkha vs. CIT (1985) 47 CTR (Raj) 182 : (1985) 156 ITR 714 (Raj) : TC 35R.158.

The second submission of the learned counsel for the petitioner was that under section 47 of the Registration Act, if a document is registered, it would relate back to the date of execution of the document and, therefore, the deed of settlement, though registered on 8th June, 1970, would take effect from 12th February, 1970, and the gift would be chargeable to tax under the GT Act for the asst. yr. 1970-71.

In this connection, learned counsel relied upon the decision of the Gujarat High Court in Arundhati Balkrishna vs. CIT (1982) 29 CTR (Guj) 85 : (1982) 138 ITR 245 (Guj) : TC 41R.773, the decisions of the Supreme Court in Hamda Ammal vs. Avadiappa Pathar 1991 (1) SCC 715 and Thakur Kishan Singh vs. Arvind Kumar 1994 (6) SCC 591. Learned counsel also submitted that the value determined by the GTO was arrived at without any material and the CIT in the revision also was not correct in placing reliance on the guideline value of the Registration Department. Learned counsel submitted that the CIT was not correct in stating that no evidence was produced in support of the valuation of the land as the petitioner has filed the report of the valuer and in the absence of any contra evidence the report of the valuer should have been accepted.

Finally, learned counsel submitted that the relief under section 18A of the GT Act should have been granted to the petitioner.

5. Mr. C. V. Rajan, learned standing counsel for the IT Department, on the other hand, submitted that for a valid gift of an immovable property to be made, it is essential that all requirements under section 123 of the Transfer of Property Act should be satisfied and the mere handing over of the document or handing over the possession of the immovable property would not be sufficient for the transfer of the property in favour of the donee. Learned counsel in this connection relied upon the decision of this Court in K. Madhavakrishnan vs. CGT (1980) 179 CTR (Mad) 340 : (1980) 124 ITR 233 (Mad) : TC 35R.194. He also submitted that the gift would become complete only when the deed was registered and insofar as third parties are concerned, the document would become complete only from the date of the registration and according to him, the gift has become complete only on the date of the registration, though it may have effect between the parties to the document from the date of execution of the deed. Learned counsel submitted that the report of the valuer would only constitute his opinion and in the absence of any material, the CIT was quite justified in relying upon the guideline value. Learned counsel also submitted that the petitioner had not prayed any relief under section 18A of the GT Act, and hence the petitioner is not entitled to that relief.

6. I have carefully considered the submissions of the learned counsel for the parties. Insofar as the first submission made by the learned counsel for the petitioner is concerned, the decision of the Rajasthan High Court in Sirehmal Nawalkha vs. CIT (supra) no doubt, supports the case of the petitioner. The Rajasthan High Court has held that the GT Act is a self-contained enactment and in view of the wide definition of the term. “gift”, many acts and transactions which may not amount to gift under the Transfer of Property Act, would be regarded as a gift under the GT Act.

The Rajasthan High Court noticed the decision of the Andhra Pradesh High Court in V. G. Krishna Rao vs. Addl. GTO (1968) 70 ITR 812 (AP) : TC 35R.132 and held that considerations arising from the definition of gift in the Transfer of Property Act cannot be imported while construing the provisions of the GT Act and the Rajasthan High Court held as under :

“The GT Act is a self-contained code in itself ………

Thus, it is obvious that the legislature did not adopt the definition of gift from the Transfer of Property Act as has been done in other cases mentioned above. From the above, it is clear that gift under section 2(xii) includes certain transfers detailed in section 4(1) and section (2) of the GT Act also.

Many acts and transactions which shall not amount to gifts under the Transfer of Property Act shall amount to gift under the GT Act. The concept of gift under the GT Act is much wider. The GT Act includes many transactions and acts in its net though ordinarily they may not be necessarily covered within the definition of gift given in the Transfer of Property Act. “Gift” has been defined under the Transfer of Property Act. …..”

7. However, I am unable to agree with the reasonings of the Rajasthan High Court, as this Court in K. Madhavakrishnan

vs. CGT (supra) has held that the mere delivery of immovable property would not satisfy the requirements of section 123 of the

Transfer of Property Act, and there would be no gift under the GT Act by the mere delivery of immovable property.

This Court has held as under :

“Sec. 123 of the Transfer of Property Act provides that for the purpose of making a gift of immovable property the

transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two

withnesses. The GT Act does not enact any exception to the general law as found in section 123 of the Transfer of Property

Act. Therefore, in order to effectuate a valid gift, the requirements of section 123 of the Transfer of Property Act should have been complied with. Sec. 123 of the Transfer of Property Act requires a registered instrument.”

8. The Gauhati High Court in the case of Smt. Satyabati Goswami vs. CGT (1978) 113 ITR 228 (Gau) : TC 35R.171 has

also taken the same view that the requirement of section 123 of the Transfer of Property Act should be satisfied to make a gift of immovable property and the Court held as under :

“To make a gift of immovable property, the property must be transferred and that transfer must be effected by registered

instrument as provided under section 123 of the Transfer of Property Act. Admittedly, there was no registered deed of gift with respect to the land purported to be gifted in 1952. But registered deeds of gift were executed on 11th June, 1959. So the transfer by gifts in the instant case became effective in law only on 11th June, 1959. No transfer by gift can be said to have taken place in respect of the lands in question prior to 1st day of April, 1957, in the absence of the registered deed of gift.”

In view of the decision of this Court, I hold that the mere delivery of immovable property to the donee without fulfilling the requirements of section 123 of the Transfer of Property Act is not sufficient to regard the transaction as a gift within the meaning of the GT Act.

9. Under section 2(xii) of the GT Act, for a valid gift to be a made there must be a transfer by one person to another of any existing movable or immovable property and, therefore, unless there is a valid transfer of the property in the eye of law, there is no gift for levy of gift-tax under the GT Act. The definition of the expression, “transfer of property” enlarging the meaning of transfer for the purpose of the GT Act also does not in anyway dispense with the requirement of registration of the deed of settlement settling an immovable property favouring a donee. It is well established that section 2(xxiv) of the GT Act also contemplates a a bilateral transfer and unless the document transferring immovable property is validly registered, there is no gift under the GT Act.

10. Learned counsel for the petitioner also referred to the Expln. to section 2(xii) of the GT Act and submitted that a transfers made by a person in possession of the property in part-performance of the contract or by a person who is regarded as the owner under section 27(iiia) or section 27(iiib) of the are IT Act are also regarded as a gift, and, therefore, he submitted that the handing over of document would be sufficient to constitute a gift. I am unable to accept the submission of the learned counsel for the petitioner.

Firstly, the Expln. to section 2(xii) was introduced w.e.f. 1st 43 April, 1988, and it has no application to the facts of the case. Secondly, the Explanation, in my view, does not in any way militate against the fulfilment of the requirements of section 123 of the Transfer of Property Act for a valid gift to be made by those persons mentioned in section 27(iiia) or section 27(iiib) of the IT Act.

The persons mentioned in section 27(iii), 27(iiia) or 27(iiib) of the IT Act are not normally regarded as owners, but any transfer made by them is also regarded as a gift within the meaning of the GT Act, but the Expln. to section 2(xii) of the GT Act merely expands the categories of persons to be regarded as donors, but it does not dispense with the requirements of fulfilment of conditions of section 123 of the Transfer of Property Act and the requirement of registration for a valid gift of immovable property to take effect. Moreover, if the contention of the petitioner is accepted, it will be open to an assessee to evade the tax as it will be within his powers to declare that the possession of the immovable property was handed over during a period which the officer may not be able to reach at all. Hence, the first submission of the learned counsel for the petitioner that the mere handing over of the document and the handing over of the possession of the immovable property would constitute a valid gift of an immovable property is not well-founded and is rejected.

11. Insofar as the second submission of the learned counsel for the petitioner is concerned, learned counsel relied upon the decision of the Gujarat High Court in the case of Arundhati Balkrishna vs. CIT (supra) wherein the Gujarat High Court after considering the decisions of the Supreme Court in Ram Saran Lall vs. Domini Kuer AIR 1961 SC 1747, K. J. Nathan vs. S. V. Maruthi Rao AIR 1965 SC 430 and Hiralal Agrawal vs. Rampadarath Singh AIR 1969 SC 244 and also the decisions of the Privy Council in Kalyanasundaram Pillai vs. Karuppa Moopanar AIR 1927 PC 42 and Venkat Subba Srinivas Hegde vs. Subba Rama Hegde AIR 1928 PC 86 held that a gift would become complete when the deed was executed and the instrument of gift was handed over by the donor to the donee and the gift would become effective from the date of execution since registration of the document does not depend upon the consent of the donor, but it is the act of an officer appointed by law for that purpose and the transaction of the gift would become complete on the date on which the document was executed and not on the date on which it was subsequently registered. The Gujarat High Court in the above case has held as under :

“…………. the transaction of gift is complete if the other formalities are completed and the document of gift is executed and that the donor cannot resile from his action before the document is registered. The ratio of both the decisions of the Privy Council is to the effect that a transaction of gift by a document which is subsequently registered becomes operative from the date on which the document of gift was executed.

12. Learned counsel referred to the decision of the Supreme Court in the case of Hamda Ammal vs. Avadiappa Pathar (supra) wherein the appellant before the Supreme Court purchased a property from the respondents/vendors by a sale deed executed in her favour in September, 1970, and the sale deed was registered on 26th October, 1970, but before the registration of the sale deed, the respondent Avadiappa Pathar filed a suit for recovery of money against the vendors of Hamda Ammal and obtained an order of attachment before judgment on 17th September, 1970, and the suit was also decreed in favour of Avadiappa Pathar, and the question that arose before the Supreme Court was whether the appellant Hamda Ammal was entitled to the property sold in her favour by virtue of the sale deed dt. 9th September, 1970, and registered subsequently or the respondent Avadiappa Pathar had a better claim over the property on the basis of the order of attachment obtained by him in between the date of execution and the date of registration of the sale deed.

The Supreme Court held that once the registration takes place, it takes effect from the date of execution and since the sale deed was executed prior to the attachment before judgment, the sale deed would prevail over the attachment before judgment. The Supreme Court distinguished the two earlier cases of the apex Court in Ram Saran Lall vs. Mst. Domini Kuer (supra) and Hiralal Agrawal vs. Rampadarath Singh (supra).

13. Learned counsel also relied upon the decision of the Supreme Court in the case of Thakur Kishan Singh vs. Arvind Kumar (supra) wherein the Supreme Court held as under :

“Sec. 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced

to operate if no registration thereof had been required or made and not from the time of its registration.”

14. I am of the view that the above decisions are authorities for the proposition that under section 47 of the Registration Act, the document registered would take effect from the date of execution of the document, but the question remains when the transfer would become complete in the eye of law.

The scope of section 47 of the Registration Act as considered by the Supreme Court in Ram Saran vs. Domini Kuer (supra) and the Supreme Court has held that the completion of the sale takes place when the property is registered and section 47 of the Registration Act does not say when a sale would be deemed to be complete. The ratio of the Supreme Court on the scope of section 47 of the Registration Act reads as under :

“A sale which is admittedly not completed until the registration of the instrument of sale is completed cannot be said to have been completed earlier because by virtue of section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date.”

15. The scope of section 47 of the Registration Act was again the subject-matter of consideration before the Supreme Court in Hiralal Agrawal vs. Rampadarath Singh (supra) and the Supreme Court reiterated the position that sale would become complete only when the registration of the sale deed takes place and not before.

16. The Gujarat High Court in the case of Darbar Shivrajkumar vs. CGT (1981) 24 CTR (Guj) 169 : (1981) 131 ITR 647 (Guj) following the above two decisions of the Supreme Court held that transaction of a gift of immovable property would be complete only on registration of the document and prior to the registration of the document, the transaction is not complete and there is no gift in the eye of law. The Court held as under :

“Since on a combined reading of ss. 122 and 123 it is evident that the transaction of gift would be complete provided and only provided a registered document is executed and other conditions are fulfilled, it cannot be said that the transaction was complete and a gift in the eye of law came to be made by the donor to the donee prior to the registration of the document by which the gift was made.

17. The Calcutta High Court in the case of CGT vs. Smt. Aloka Lata Sett (1992) 103 CTR (Cal) 343 : (1991) 190 ITR 556 (Cal) : TC 35R.198 has also taken the same view and held that though the registered document may take effect from a date anterior to the date of registration as between the transferor and transferee of immovable property, but in the case of third parties the point of time at which the transfer would become complete is when it is registered.

18. I am of the view that though the transaction of the gift may be regarded as valid in between the donor and the donee from the date of execution of the settlement deed, but if the document is required to be registered, the transfer of immovable property would become complete by registration of the document. Though by virtue of section 47 of the Registration Act, it would relate back to the date of execution, in such cases, I hold that only by registration of the document transferring the immovable property, the transfer would become complete though it may have effect from a date anterior to the date of registration and insofar as third parties, particularly, the tax authorities are concerned, the relevant date for the levy of tax is the date of registration of the document.

19. Learned authors Chaturvedi & Pithisaria in Income Tax Law (1993-94 Edn. Vol. 9) at p. 1557 also noticed the conflict of views expressed by various High Courts. I hold that a gift of immovable property would become complete only when the document is registered and section 47 of the Registration Act does not deal with the concept of the completion of the transaction and it provides for an effective date for a document. Though the document may become effective as between the parties to the document from the date of execution and unless the transaction is complete in the eye of law, there is no gift within the meaning of law. The definition of the expression, ‘gift’ in section 2(xii) of the GT Act does not in any way help the petitioner as there was no transfer as contemplated under the law before the registration of the said document.

Therefore, I am unable to agree with the view of the Gujarat High Court expressed in Arundhati Balkrishna vs. CIT (supra) but I agree with the earlier decision of the Gujarat High Court in Darbar Shivrajkumar vs. CGT (supra) and the decision of the Calcutta High Court in CGT vs. Smt. Aloka Lata Sett (supra).

20. The next question that arises is that the determination of market value by the CIT is correct. I find some force in the submission of the learned counsel for the petitioner. The CIT has found that the value of the property was determined at Rs.1,30,000 by the GTO without any basis. The CIT however determined the value of the property gifted at Rs. 1,20,180 on the basis of the guideline value of the Registration Department. It is well settled that guideline value regarding valuation of the property has evidentiary value and they are only intended to give information or instruction to the registering authorities but the guidelines, as such would not establish the market value of the land. In the decision of this Court in M. Ponnusamy & Ors. vs. District Collector, Erode & Ors. 1999 (2) L.W. 231, E. Padmanabhan, J. after referring to earlier cases on the topic has held that the guideline value cannot be regarded as a conclusive evidence regarding market value of a land.

21. The Supreme Court in Ramesh Chand Bansal vs. District Magistrate/ Collector, Ghaziabad AIR 1999 SC 2126, following the earlier decision in State of Punjab vs. Mohabir Singh AIR 1996 SC 2994 has held that the circle rate fixed by the Collector is not final but it is only a prima facie determination of the rate of the area concerned to give guidance to the registering authority to test prima facie whether the instrument has properly described the value of the property and the circle rate under the U.P. Stamp Rules is not final. The Supreme Court has also held that the circle rate has a limited application and it does not take away any right of the such person to show that the property in question was correctly valued as he gets an opportunity in case of undervaluation to prove it before the Collector after reference is made.

22. Here, the CIT has not conducted any independent investigation on the question of determination of the market value of the property gifted by collecting necessary materials for the determination of the same, de hors the guideline value.

Since the determination of the market value of the property by the CIT is not based on relevant materials and the CIT has overlooked the material produced by the petitioner, the matter may have to be remitted to the CIT for fresh determination of the market value of the property. However, considering the fact that the assessment is of the year 1971-72 and the order of the GTO was made as early as 8th August, 1979, I am of the view that instead of remitting the matter to the CIT, the market value shown by the petitioner, which is based on the valuer’s report, viz., a sum of Rs. 83,330 can be taken as the market value of the property so that further proceedings on the determination of the market value can be avoided. Further, the value shown by the petitioner is based on the report of the approved valuer and there are no justifiable reasons to discard the same.

Accordingly, I direct that the market value of the property settled should be taken as Rs. 83,330 as its value.

23. Insofar as the credit for the stamp duty paid is concerned, though the petitioner has not made any claim for stamp duty before the AO, the petitioner would be entitled to the said relief under section 18A of the GT Act as then existing during the relevant assessment year in question.

Though the petitioner has not claimed the same before the GTO the relief under section 18A of the GT Act is a statutory relief under the provisions of the statute and, therefore, irrespective of the question whether a specific claim was made by the petitioner or not for the credit for the stamp duty paid on the instrument of gift, the petitioner would be entitled to the relief available under section 18A of the GT Act. The second respondent is directed to pass orders in conformity with the judgment.

24. Subject to the modifications indicated earlier, the writ petition is disposed of. However, in the circumstances,

there will be no order as to costs.

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