Law:

Section:

Section 23(5) of the Gift-tax Act, 1958 - Appellate Tribunal - Orders of - Assessee, a karta of HUF, was holder of impartible estate and had made gifts of share and property in relevant assessment years - He was assessed as individual in previous years but in relevant assessment years he filed returns as HOT - GTO assessed him in status of individual - Assesses successfully contended for first time before Tribunal that gifts and transfer of portions in joint property were made in capacity of karta of joint Hindu family and not as individual - Whether order of Tribunal was justified in holding that assessments made in status of individual were not tenable in law - Held, on facts, yes - Whether Tribunal was justified in cancelling instead of setting aside said assessments - Held, no FACTS The assessee, a karta of the HUF, was the holder of impartible estate and was assessed as individual in the previous years. In the relevant assessment years he had made gifts of the shares and property. The assessee filed returns for the relevant assessment years in the status of HUF. The GTO without mentioning the fact that the assessee had filed returns in the status of HUF, assessed him in the capacity of individual. Relying? on the Supreme Court's decision In his own case in CIT v. Maharaj Kumar Kamal Singh [1973] 89 ITR 1 , it was contended by the assessee for the first time before the Tribunal that the gifts and transfer of the portion of joint property were made by the assessee in his capacity as karta of the joint Hindu family and not as individual and that the assessee in his capacity as the karta of joint family was a different person from the assessee in his individual capacity. The Tribunal accepted the contentions of the assessee and held that assessments made in the status of individual were not justified and, therefore, cancelled the assessments. On reference: HELD It had been held in Chiranjilal v. CIT [1965] 56 ITR 715 (All.), Mangat Bam Hazari Mai v. CIT[1968] 67 ITR 788 (Punj. & Har.)and CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 (SC)that the Tribunal has ample power under section 33(4) of the 1922 Act to set aside an assessment made on the individual and…

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