PETITIONER: SRI JAGATRAM AHUJA Vs. RESPONDENT: THE COMMISSIONER OF GIFT TAX, DATE OF JUDGMENT: 17/08/2000 BENCH: S.P. Bhuracha , S.N. Phukan , & Shivaraj V. Patil JUDGMENT:
Shivaraj V. Patil J.
L…I…T…….T…….T…….T…….T…….T…….T..J
This appeal is by the assessee against the judgment and
order dated 25.4.1988 passed by the Division Bench of the
High Court of Andhra Pradesh. It relates to the assessment
year 1972- 73.
The Income-tax Appellate Tribunal, Hyderabad (for short
the `Tribunal’ ) had referred the following question under
26(1) of the Gift-tax Act, 1958 (for short the `Act’) for
the opinion of the High Court :-
“Whether on the facts and in the circumstances of the
case, the Tribunal was right in holding that the release by
the assessee who was one of the partners in the firm of
3-Aces, of his rights in the assets of the firm for a
consideration of Rs. 3,00,000/- when the market value of
the assets of the firm in proportion to his share was in
excess thereof, did not amount to a gift within the meaning
of the Gift-tax Act.”
The High Court by the impugned judgment answered the
said question in negative and against the assessee.
Briefly stated, the facts leading to the filing of this
appeal are as follows.
The appellant and his brother Bishanlal Ahuja were the
partners of a partnership firm constituted on 9.1.1965 under
the name and style of “3-Aces”. The firm was engaged in the
business of a restaurant in a building known as
“Mohsin-ul-Mulk Kothi” situated at Abid Road, Hyderabad.
An agreement was entered into between the appellant and
his brother Bishanlal on 15.4.1971. The terms of the said
agreement are set out below: –
“(i) Sri Jagatram (assessee) is to retire before
December 31,1971.
(ii) Steps are to be taken to finalise accounts relating
to the partnership and determination of the amount due to
Sri Jagatram on retirement.
(iii)Sri Bishanlal agreed to pay a sum of Rs. 1,50,000
to Sri Jagatram towards the value of 50% share of the
goodwill of the firm.
(iv) The above sum of Rs. 1,50,000 payable by Sri
Bishanlal to Sri Jagatram shall be in addition to the sum
due to Sri Jagatram from the partnership at the time of
retirement.
(v) If the total sum including 50% share value of the
goodwill, i.e., Rs. 1,50,000/-, payable to Sri Jagatram
falls below Rs. 3,00,000, the amount in excess of the
balance actually due to Sri Jagatram at the time of
retirement shall be treated as the sale value of 50% share
of the goodwill belonging to Sri Jagatram.
(vi) Sri Jagatram shall execute proper conveyance in
favour of Sri Bishanlal conveying 50% share in the land and
building in which the business of 3-Aces is carried on.
(vii)It is open to Sri Bishanlal to classify the sum
payable to Sri Jagatram as between movable and immovable
properties and get necessary documents executed by Sri
Jagatram.”
Pursuant to the said agreement, a Deed of Dissolution of
the partnership was executed on 22.11.1971 w.e.f. that
date. The relevant terms contained in the Deed of
Dissolution are given below:-
“(i) All the assets and liabilities of the partnership
including the land and building are taken by Sri Bishanlal
from November 22, 1971.
(ii) Sri Jagatram renounced his interest, share and
interest in the said assets and liabilities from November
22, 1971.
(iii)In full settlement and satisfaction of the share,
right and interest of Sri Jagatram in the partnership
including land and buildings, profits and goodwill and the
amounts standing to the credit of Sri Jagatram in the
partnership accounts as on November 21, 1971, Sri Jagatram
has agreed to receive Rs. 3,00,000.
(iv) Out of the said Rs. 3,00,000, Rs. 1,00,000 has
already been paid. The balance of Rs. 2,00,000 is payable
by Sri Bishanlal against the sale consideration of the
undivided 50% share in the land and building known as
“Mohsin-ul-Mulk Kothi”.
(v) Sri Jagatram should immediately execute a sale deed
and register the same in favour of Sri Bishanlal conveying
his 50% share in the land and building for Rs. 2,00,000.”
It was on 10.3.1972 that the appellant and Bishanlal
executed a document styled as `Release Deed’ pursuant to and
consistent with the aforementioned two documents.
Originally assessment of gift tax was made on 12.2.1972
on a total gift of Rs. 70,000/. After allowing exemption
of Rs. 5,000/- it was determined at Rs. 65,000/-.
Subsequently, the Gift Tax Officer took up the proceedings
under Section 16 of the Act, 1958 by re-opening the
assessment already made. He valued the share of the
appellant in the partnership assets at Rs. 12,67,015/-. An
amount of Rs. 3,00,000/- paid by Bishanlal to the appellant
was deducted and thus the value of the property alleged to
have been gifted by the appellant to his brother Bishanlal
was arrived at Rs. 9,67,015/-. On appeal by the appellant,
the Commissioner of Gift-tax (Appeals) confirmed the order
of the Gift-tax Officer. However, he reduced the total
value of the gift by Rs.3,77,000/-. The appellant took up
the matter in further appeal before the Tribunal. The
Tribunal accepted the appeal holding that the distribution
of assets between partners on the dissolution of the firm,
even though unequal, does not amount to “transfer of
property” within the meaning of Section 2(xxiv) and
therefore, did not amount to “gift” as defined in Section
2(xii) of the Act.
At the instance of the Revenue, the Tribunal referred
the above stated question under Section 26(1) of the Act for
the opinion of the High Court. The High Court referring to
the various decisions and for the reasons stated in the
impugned judgment took the view in favour of the Revenue.
In doing so, the High Court relied on CGT vs. Chhotalal
Mohanlal [1987]166 ITR 124(SC), M.K. Kuppuraj vs. CGT
[1985] 153 ITR 481 (Mad) and CGT vs. Premji Trikamji
Jobanputra [ 1982] 133 ITR 317 (Bom.) distinguishing the
other cases, particularly the case of CGT vs. Getti
Chettiar [ 1971] 82 ITR 599(SC) strongly relied on in
support of the case of the appellant.
At the outset, the learned counsel for the appellant
submitted that the appellant is not challenging the
valuation of property of alleged gift. Hence, it is
unnecessary for us to go into that question. The learned
counsel for the appellant seriously contended that the High
Court manifestly erred in answering the question in favour
of the Revenue contrary to the ratio and principles stated
in the case of Getti Chetiar (supra). He further submitted
that the decisions relied on by the High Court in support of
its conclusion were not directly on the point and some of
them arose under the Estate Duty Act.
Per contra, the learned senior counsel for the
respondent argued supporting the view taken by the High
Court.
We have carefully considered the submissions made by the
learned counsel for the parties. In order to appreciate the
respective contentions of the parties and to resolve the
controversy we consider it appropriate to extract
definitions of “Gift” and “Transfer of property” from
Section 2 of the Act: –
“2 (xii) “gift” means the transfer by one person to
another of any existing movable or immovable property made
voluntarily and without consideration in money or money’s
worth, and includes the transfer or conversion of any
property referred to in section 4, deemed to be a gift under
that section;
Explanation. — A transfer of any building or part
thereof referred to in clause (iii), clause (iiia) or clause
(iiib) of section 27 of the Income-tax Act, by the person
who is deemed under the said clause to be the owner thereof
made voluntarily and without consideration in money or
money’s worth, shall be deemed to be a gift made by such
person.”
“2 (xxiv) “transfer of property” means any disposition,
conveyance, assignment, settlement, delivery, payment or
other alienation of property and, without limiting the
generality of the foregoing, includes —
(a) the creation of a trust in property;
(b) the grant or creation of any lease, mortgage,
charge, easement, licence, power, partnership or interest in
property;
(c) the exercise of a power of appointment (whether
general, special or subject to any restrictions as to the
persons in whose favour the appointment may be made) of
property vested in any person; not the owner of the
property, to determine its disposition in favour of any
person other than the donee of the power; and
(d) any transaction entered into by any person with
intent thereby to diminish directly or indirectly the value
of his own property and to increase the value of the
property of any other person;”
This Court in Commissioner of Gift-Tax, Madras vs. N.S.
Getti Chettiar [1971] 82 ITR 599 SC ], arising under the Act
itself construing and considering the very same provisions
held that in a Hindu Joint Family by allotting greater share
to other members of coparcenary than that to which they were
entitled, the assessee could not be held to have made a
gift. Facts of the case were that the assessee was the
Karta of Hindu Undivided Family consisting of himself, his
son and his six grandsons. There was a partition in the
family property. The total value of the properties divided
was Rs.8,51,440/- but the assessee, the Karta took
properties worth only Rs.1,78,343/- allotting the remaining
properties to other coparceners. After considering various
decisions and provisions of law, this Court arrived at the
following conclusions:-
i) That the partition did not effect any transfer as
generally understood in law and did not, therefore, fall
within the definition of gift in Section 2(xii) of the Act.
ii) That the partition in the family could not be considered
to be a disposition, conveyance, assignment, settlement,
delivery, payment or other alienation of property within the
meaning of those words in Section 2(xxiv) of the Act. iii)
That the partition was not a transaction entered into by the
assessee with intent thereby to diminish directly or
indirectly the value of his own property and to increase the
value of the property of any other person and, therefore,
Section 2(xxiv)(d) did not apply. (iv) That, therefore,
there was no gift by the assessee of which he was liable to
pay gift tax. On the reason that a member of Hindu
Undivided Family has no definite share in the family
property before the division and he cannot be said to
diminish directly or indirectly the value of his property or
to increase the value of the property of any other
coparcener by agreeing to take a share lesser than what he
would have got if he would have gone to a court to enforce
his claim.
The word ‘transaction’ in clause (d) of Section 2(xxiv)
takes its colour from the main clause; it must be a
transfer of property in some way. The words disposition,
conveyance, assignment, settlement, delivery and payment are
all used to indicate some kind of transfer of property. An
interpretation clause which extends the meaning of a word
does not take away its ordinary and popular meaning.
It is settled position in law that a partition of Hindu
Undivided Family cannot be considered as a transfer in the
strict sense. In Commissioner of Income-tax vs. Keshavlal
Lallubhai Patel [(1965) 2 SCR 100 = 55 ITR 637] this Court
stated thus: –
“But, is a partition of joint Hindu family property a
transfer in the strict sense? We are of the opinion that it
is not. This was so held in Gutta Radhakrishnayya v. Gutta
Sarasamma [ILR 1951 Mad. 607]. Subba Rao J. (then a judge
of the Madras High Court), after examining several
authorities, came to the conclusion that ‘partition is
really a process in and by which a joint enjoyment is
transformed into an enjoyment in severalty. Each one of the
shares had an antecedent title and, therefore, no conveyance
is involved in the process, as a conferment of a new title
is not necessary.’ The Madras High Court again examined the
question in M.K. Stremann v. Commissioner of Income-tax
[41 ITR 297 (Mad.)], with reference to section 16(3)(a)(iv).
It observed that ‘obviously no question of transfer of
assets can arise when all that happens is separation in
status, though the result of such severance in status is
that the property hitherto held by the coparcenary is held
thereafter by the separated members as tenants-in-common.
Subsequent partition between the divided members of the
family does not amount either to a transfer of assets from
that body of the tenants-in-common to each of such
tenants-in-common’.”
This Court in Getti Chettiar case aforementioned has
stated thus: –
“A reading of this section clearly goes to show that the
words “disposition”, “conveyance”, “assignment”,
“settlement”, “delivery” and “payment” are used as some of
the modes of transfer of property. The dictionary gives
various meanings for those words but those meanings do not
help us. We have to understand the meaning of those words
in the context in which they are used. Words in a section
of a statute are not to be interpreted by having those words
in one hand and the dictionary in the other. In spelling
out the meaning of the words in a section, one must take
into consideration the setting in which those terms are used
and the purpose that they are intended to serve. If so
understood, it is clear that the word “disposition” in the
context means giving away or giving up by a person of
something which was his own, “conveyance” means transfer of
ownership, “assignment” means the transfer of the claim,
right or property to another, “settlement” means settling
the property, right or claim conveyance or disposition of
property for the benefit of another, “delivery” contemplated
therein is the delivery of one’s property to another for no
consideration and “payment” implies gift of money by someone
to another. We do not think that a partition in a Hindu
Undivided Family can be considered either as “disposition”
or “conveyance” or “assignment” or “settlement” or
“delivery” or “payment” or “alienation” within the meaning
of those words in s. 2 (xxiv).
This leaves us with cl. (d) of S. 2 (xxiv) which
speaks of a transaction entered into by any person with
intent thereby to diminish directly or indirectly the value
of his own property and to increase the value of the
property of another person. A member of Hindu Undivided
Family who, as mentioned earlier, has no definite share in
the family property before division, cannot be said to
diminish directly or indirectly the value of his property or
to increase the value of the property of any other
coparcener by agreeing to take a share lesser than what he
would have got if he had gone to court to enforce his claim.
Till partition, his share in the family property is
indeterminate. He becomes entitled to a share in the family
property only after the partition. Therefore there is no
question of his either diminishing directly or indirectly
the value of his own property or of increasing the value of
the property of anyone else. The “transaction” referred to
in cl. (d) of s. 2 (xxiv) takes its colour from the main
clause viz., it must be a transfer of property in some way.
This conclusion of ours gets support from sub-clause (a) to
(c) of clause (xxiv) of s. 2, each of which deals with one
or the other mode of transfer. If Parliament intended to
bring within the scope of that provision partitions of the
type with which we are concerned, nothing was easier than to
say so. In interpreting tax laws, courts merely look at the
words of the section. If a case clearly comes within the
section, the subject is taxed and not otherwise.”
This Court again in Addanki Narayanappa and Another vs.
Bhaskara Krishnappa [AIR 1966 SC 1300], considering the
provisions of Sections 14, 15, 29, 32, 37, 38 and 48 of
Partnership Act, 1932 has explained as to the nature of
property during subsistence of partnership and after its
dissolution. It is held that “from a perusal of these
provisions it would be abundantly clear that whatever may be
the character of the property which is brought in by the
partners, when the partnership is formed or which may be
acquired in the course of the business of the partnership it
becomes the property of the firm and what a partner is
entitled to is his share of profits, if any, accruing to the
partnership from the realization of this property, and upon
dissolution of the partnership to a share in the money
representing the value of the property. No doubt, since a
firm has no legal existence, the partnership property will
vest in all the partners and in that sense every partner has
an interest in the property of the partnership. During the
subsistence of the partnership, however, no partner can deal
with any portion of the property as his own. Nor can he
assign his interest in a specific item of the partnership
property to anyone. His right is to obtain such profits, if
any, as fall to his share from time to time, and upon the
dissolution of the firm to a share in the assets of the firm
which remain after satisfying the liabilities set out in Cl.
(a) and sub-Cls. (i), (ii) and (iii) of Cl. (b) of S.48.”
In Malabar Fisheries Co. vs. Commissioner of
Income-tax, Kerala [1979] 120 ITR 49 SC] this Court
considered few provisions of Income-tax Act, 1961.
Referring to the case of Addanki Narayanappa and other cases
expressed the view that a partnership firm under the Indian
Partnership Act is not a distinct legal entity apart from
the partners constituting it and that in law the firm as
such has no separate rights of its own. When one talks of
the property or assets of the firm all that is meant is
property or assets in which all partners have a joint or
common interest. Hence the contention that upon dissolution
of the firm rights in the partnership assets are
extinguished, cannot be accepted. It is further, held that
the partners own jointly or in common the assets of the
partnership and, therefore, the consequence of the
distribution, division or allotment of assets to the
partners which flows upon dissolution after discharge of
liabilities is nothing but a mutual adjustment of rights
between the partners and there is no question of any
extinguishment of the firm’s rights in the partnership
assets amounting to a transfer of assets within the meaning
of Section 2(47) of the Income-tax Act, 1961. Although the
case arose under the provisions of Income-tax Act, but as to
the nature and character of transaction of mutual adjustment
of rights between the partners upon dissolution of a firm,
it was clearly held that such a transaction did not amount
to transfer. If there is a sale or transfer of assets by
the assessee to a person, the position would be different.
Since a partner in a firm has no exclusive right on any
property of the firm he cannot transfer the property. But
upon the dissolution of a firm allotment or adjustment of
the assets takes place. Hence there was no element of
transfer in such a case.
Yet, in another case Commissioner of Income-Tax, Madhya
Pradesh, Nagpur and Bhandara vs. Dewas Cine Corporation
[1968] 68 ITR 240 SC], dealing with the provisions of
Section 10(2)(vii) of Income-tax Act again referring to
Addanki Narayanappa’s case this Court took the view that a
partner might in an action for dissolution insist to sell
the assets of partnership to realize his share. But where
in satisfaction of the claim of a partner to his share in
the value of the residue determined on the footing of an
actual or notional sale, the properties so allotted cannot
be taken to have been sold to him.
On principles and in view of the clear ratio, the
decision of Getti Chettiar (supra) of this Court supported
the case of the appellant which decision was rightly applied
by the Tribunal to the facts of the case. The High Court in
relation to the said decision has stated thus :-
“Be that as it may, it is not for us to express any
opinion on the said criticism. By virtue of Article 141 of
the Constitution, the said decision and even the
observations aforesaid are binding upon us. In our opinion,
however, the ratio of the said decision has no application
to the distribution of assets as between partners whose
shares inter se are specific and determined at any given
point of time. Moreover, this decision has to be read and
understood in the light of the subsequent decision of the
Supreme Court in CED vs. Kantilal Trikamlal [1976] 105 ITR
92, which is, no doubt, a case arising under the Estate Duty
Act. Section 2(15) of the Estate Duty Act defines
“property” in the following terms.”
The High Court having rightly stated that the said
decision and even the observations made were binding on it
wrongly did not apply the ratio of the said decision to the
facts of the case in hand. Further the High Court committed
an error in stating that the said decision had no
application to the distribution of the assets as between the
partners whose shares inter-se are specific and determined
at any given point of time and that the said decision had to
be read and understood in the light of the subsequent
decision of this Court in Kantilal Trikamlal’s case. As in
the case of Hindu Joint Family, the coparceners do not have
exclusive rights on any specific property of the family, the
property allotted to their shares become specified only on
partition; the same is the position in the case of partner
of a firm. No partner of a firm can claim exclusive or
specific right in any specific asset of the property of a
firm. Coparceners also have definite share in the Hindu
Undivided Family. So also the partners have definite share
in the partnership. In our considered view, the principles
stated in Getti Chettiar’s case equally apply to case of
allotment or adjustment of properties among the partners
upon dissolution of a firm. We fail to understand how
Kantilal Trikamlal’s case made any difference. The said
case did not show any disagreement with the principles
stated in Getti Chetiar’s case and no distinction was made
to take a different view. On the other hand, principles
stated in Getti Chettiar’s case were affirmed. In relation
to Getti Chettiar’s case, in Kantilal Trikamlal, it is
stated thus:-
“That a case under the Gift-tax Act, 1958, and the
construction of section 2(xxiv) fell for decision.
Certainly, many of the observations there, read de hors the
particular statute, might reinforce the assessee’s stand.
This court interpreted the expression “transfer of property”
in section 2(xxiv) and held that the expression
“disposition” used in that provision should be read in the
context and setting of the given statute. The very fact
that “disposition” is treated as a mode of transfer takes
the legal concept along a different street, if one may use
such a phrase, from the one along which that word in the
Estate Duty Act is traveling. Mr. Justice Hegde rightly
observed, if we may say so with respect, that:
“Words in the section of a statute are not to be
interpreted by having those words in one hand and the
dictionary in the other. In spelling out the meaning of the
words in a section, one must take into consideration the
setting in which those terms are used and the purpose that
they are intended to serve.” (pp.605-606).
The word” transaction” in section 2(24) of the Gift-tax
Act takes its colour from the main clause, that is, it must
be a “transfer” of property in some way. Since a partition
is not a “transfer” in the ordinary sense of law, the court
reached the conclusion that a mere partition with unequal
allotments not being a transfer, cannot be covered by
section 2(xxiv). A close reading of that provision and the
judgment will dissolve the mist of misunderstanding and
discloses the danger of reading observations from that case
for application in the instant case. The language of
section 2(15), Explanation 2, is different and wider and the
reasoning of Getti Chettiar cannot therefore, control its
amplitude. It is perfectly true that in ordinary Hindu law
a partition involves no conveyance and no question o
transfer arises when all that happens is a severance in
status and the common holding of property by the coparcener
is converted into separate title of each coparcener as
tenant-in-common. Nor does subsequent partition by metes
and bounds amount to a transfer. The controlling
distinction consists in the difference in definition between
the Gift-tax Act (section 2(xxiv) and the Estate Duty Act
(section 2(15).”
We find that Kantilal Trikamlal’s case supports the view
taken in Getti Chettiar’s case. Added to this, Section
2(15) of the Estate Duty Act, defining “property” came up
for consideration in Kantilal Trikamlal’s case. We may
state here itself that the words and expressions defined in
one statute as judicially interpreted do not afford a guide
to construction of the same words or expressions in another
statute unless both the statutes are para-materia
legislations or it is specifically so provided in one
statute to give the same meaning to the words as defined in
other statute. The aim and object of the two legislations,
namely, the Gift-tax Act and the Estate Duty Act are not
similar.
In CIT vs. Bankey Lal Vaidya [1971] 79 ITR 594 (SC), it
is clearly stated that where in the course of dissolution,
the assets of the firm are divided between the partners
according to the respective shares, by allotting the
individual assets or paying the money value equivalent
thereof, no transfer is involved and that it is merely a
case of distribution of assets.
The same view is taken in Addl. CIT vs. Mohanbhai
Pamabhai [1987] 165 ITR 166 (SC) that where a partner
retires from a firm and receives his share of amount
calculated on the valuation of the net partnership assets
including goodwill of the firm, no transfer is involved.
We now refer to the cases relied on by the High Court to
support its view. In CGT vs. Chhotalal Mohanlal [1974] 97
ITR 393 (Guj), this Court reversed the decision of Gujarat
High Court and in the light of the facts and circumstances
of the case, held that there was a gift for the purpose of
the Gift-tax Act. In that case, a firm by name M/s.
Chhotalal Mohanlal came into existence with three partners
namely, Chhotalal Mohanlal, G.Chhotalal and P.Vedilal with 7
annas, 4 annas and 5 annas shares respectively. During the
assessment year 1963-64, under the new deed, P.Vedilal
retired. The share of G.Chhotalal remained unchanged. One
R.Chhotalal became a partner with 4 annas share. The share
of assessee Chhotalal Mohanlal was reduced to 4 annas. For
the remaining 4 annas share, 2 minor sons of Chhotalal
Mohanlal were admitted to the benefits of the firm with 12%
and 13% interest respectively. There was also no change in
the share capital standing in the name of the assessee. As
can be seen from the facts stated above, P.Vedilal retired
and the firm was reconstituted; two minor sons of Chhotalal
Mohanlal, one of the partners were admitted to the benefits
of the partnership and simultaneously share of said
Chhotalal Mohanlal was reduced from 7 annas to 4 annas
giving 3 annas share to the minor sons. In this situation
when at the time of the reconstitution of the firm, a 3
annas share out of Chhotalal Mohanlal’s 7 annas share in the
partnership firm was given to his minor sons it was taken as
transfer of property by way of gift and as such it was
taxable. Hence the case of Chottalal Mohanlal did not
advance the case of the Revenue on the facts of the case
before us.
The case of M.K.Kuppuraj was also a case where the
assessee’s share was reduced and his minor children were
admitted to the benefits of the partnership with 8% share in
the profits and this case was referred to and approved by
this Court in Chottalal Mohanlal’s case. The case of Premji
Trikamji is again a case where in the constitution of a
firm, minors were admitted to the benefits of the
partnership firm. In all these cases, minors were admitted
to the benefits of the partnership and if such partner or
minor did not bring in capital of his own into the
partnership firm corresponding to his share, it was held
that the transaction amounted to a gift. But the present
case stands entirely on a different footing. It is clearly
and merely a case of adjustment or distribution of assets of
the firm in regard to share of the appellant on its
dissolution and as such no transfer of property was involved
in it.
Thus, in our view, the High court was not right in
applying the decisions in (1) Chhotalal Mohanlal (2) M.K.
Kuppuraj, (3) Premji Trikamji to the facts of the case in
hand.
The cases of this Court in (1) Getti Chettiar, ( 2)
Malabar Fisheries Co., (3) Dewas Cine Corporation, (4)
Bankey Lal Vaidya and (5) Mohanbhai Pamabhai aforementioned
fully support the appellant on facts and in the
circumstances of the case.
Having regard to all aspects and for the reasons stated
above, we conclude that the High Court committed an error in
answering the question in negative i.e. in favour of the
Revenue and against the assessee-appellant. Hence this
appeal is entitled to succeed. The judgment and order of
the High Court reported in [1988] 172 ITR 632 (AP) are set
aside, upholding the order of the Tribunal. The question
aforementioned is answered in the affirmative i.e. against
the Revenue and in favour of the assessee-appellant. The
appeal is ordered accordingly. No costs.
