Om Prakash, C. J. Heard Counsel for the parties.
2. The Tribunal by order dt. 9-5-1995 in compliance with the directions given by this Court by the judgment dated 15-11-1994, referred the following question for the opinion of this Court:
2. The Tribunal by order dt. 9-5-1995 in compliance with the directions given by this Court by the judgment dated 15-11-1994, referred the following question for the opinion of this Court:
"Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that there is no gift involved in the facts of the present case?"
3. The sole question canvassed before us by the learned senior standing counsel is whether there was a gift of the building being used by M/s. Cochin Tourist Home to run a hotel, when Smt. Stella converted her proprietary concern carrying on two businesses: (1) M/s. Cochin Tourist Home and (2) Pulickal Pharmaceutical Distributions, Ernakulam, into a partnership firm. The contention of learned counsel for the assessee-partnership firm is that the building being used by M/s. Cochin Tourist Home continued to be under the ownership of Smt. Stella and did not become an asset of the partnership firm and, therefore, there was no gift in regard to that property. She submits that the building being used by M/s. Cochin Tourist Home is being assessed under the Wealth Tax Act in the hands of Smt. Stella as individual and that the partnership firm which was constituted after converting the sole proprietary concern, clearly stipulates that the building being used by M/s. Cochin Tourist Home, shah continue to be under the ownership of Smt. Stella, one of the partners in the firm.
3. The sole question canvassed before us by the learned senior standing counsel is whether there was a gift of the building being used by M/s. Cochin Tourist Home to run a hotel, when Smt. Stella converted her proprietary concern carrying on two businesses: (1) M/s. Cochin Tourist Home and (2) Pulickal Pharmaceutical Distributions, Ernakulam, into a partnership firm. The contention of learned counsel for the assessee-partnership firm is that the building being used by M/s. Cochin Tourist Home continued to be under the ownership of Smt. Stella and did not become an asset of the partnership firm and, therefore, there was no gift in regard to that property. She submits that the building being used by M/s. Cochin Tourist Home is being assessed under the Wealth Tax Act in the hands of Smt. Stella as individual and that the partnership firm which was constituted after converting the sole proprietary concern, clearly stipulates that the building being used by M/s. Cochin Tourist Home, shah continue to be under the ownership of Smt. Stella, one of the partners in the firm.
4. The assessing authority, however, held that when the sole proprietary concern was converted into partnership, the individual property belonging to Smt. Stella, became an asset of the partnership, and, therefore, in law, there was a gift in respect of the said property,
4. The assessing authority, however, held that when the sole proprietary concern was converted into partnership, the individual property belonging to Smt. Stella, became an asset of the partnership, and, therefore, in law, there was a gift in respect of the said property,
5. On appeal, the Commissioner (Appeals) and the Tribunal accepted the contention of the assessee that there was no gift in respect of the building being used by M/s. Cochin Tourist Home to run the hotel.
5. On appeal, the Commissioner (Appeals) and the Tribunal accepted the contention of the assessee that there was no gift in respect of the building being used by M/s. Cochin Tourist Home to run the hotel.
6. From the perusal of the order of the Tribunal, it appears that the order was made perfunctorily, The Tribunal has not gone into the fact whether the building being used as hotel by M/s. Cochin Tourist Home, was shown as an asset of the partnership firm in the balance sheet. The Tribunal has not at all gone deep into the materials available on record and it simply concurred with the view taken by the Commissioner (Appeals). The learned senior standing counsel vehemently argued before us that the building having been shown as an asset of the partnership firm in the balance sheet, the Tribunal ought not to have interfered with the assessment order. However, the contention of learned counsel for the assessee is that by sheer mistake, the building was shown as the asset of the firm in the balance sheet,
6. From the perusal of the order of the Tribunal, it appears that the order was made perfunctorily, The Tribunal has not gone into the fact whether the building being used as hotel by M/s. Cochin Tourist Home, was shown as an asset of the partnership firm in the balance sheet. The Tribunal has not at all gone deep into the materials available on record and it simply concurred with the view taken by the Commissioner (Appeals). The learned senior standing counsel vehemently argued before us that the building having been shown as an asset of the partnership firm in the balance sheet, the Tribunal ought not to have interfered with the assessment order. However, the contention of learned counsel for the assessee is that by sheer mistake, the building was shown as the asset of the firm in the balance sheet,
7. Be that as it may, the rival contentions of the parties ought to have been considered by the Tribunal, which it failed to do. We have, therefore, no option, but to remit the case to the Tribunal for reconsideration.
7. Be that as it may, the rival contentions of the parties ought to have been considered by the Tribunal, which it failed to do. We have, therefore, no option, but to remit the case to the Tribunal for reconsideration.
8. The case is, therefore, remitted to the Tribunal, who will record a clear finding after taking into consideration the rival submissions of the parties on the question: whether the building in which the hotel is being run by M/s. Cochin Tourist Home, became an asset of the firm, when the proprietary concern of Smt. Stella was converted into the partnership.
8. The case is, therefore, remitted to the Tribunal, who will record a clear finding after taking into consideration the rival submissions of the parties on the question: whether the building in which the hotel is being run by M/s. Cochin Tourist Home, became an asset of the firm, when the proprietary concern of Smt. Stella was converted into the partnership.
For the above reasons, we decline to answer the abovestated question. The reference is accordingly disposed of.