ORDER
K.R. Dixit, Judicial Member
1. This appeal is regarding the transfer of certain shares by the assessee to the daughter of the karta claimed to be on the occasion of her marriage. It raises two issues, whether the transfer can be regarded as a gift under the Gift-tax Act and in the alternative whether exemption under Section 5(1)(vii) of that Act would be available to the assessee.
2. Briefly stated, the karta of the assessee HUF transferred shares worth Rs. 37,600 to his daughter on 27-11-1982 and claimed it as having been made on the occasion of her marriage which took place more than six months before, i.e., 5-5-1982. Because of this time gap the GTO rejected the assessee’s claim of exemption under Section 5(1)(vii) on the ground that the gift was not made on the occasion of the marriage. Before the Dy. Commissioner (Appeals) the assessee took the ground that the GTO had erred in holding that the said transfer was a taxable gift and in the alternative that he erred in rejecting the above claim of the assessee for exemption. The Dy. Commissioner confirmed the GTO’s order rejecting the assessee’s claim for exemption relying on the decision in CGT v. M.S. Rao [1976] 102 ITR 308 (Pat.). However, he did not decide the first ground that the GTO had erred in regarding the transfer as a taxable gift.
3. Before the Tribunal, the assessee has taken the ground that the Dy. Commissioner had erred in not deciding the aforesaid first ground and also in the alternative in confirming the GTO’s order rejecting the claim to the said exemption. At the time of hearing before us submissions were made on behalf of the assessee regarding both the above claims (a) that the transfer is not a taxable gift and (b) in the alternative that it is exempt under Section 5(1)(vii) of the Act. Since the Dy. Commissioner has not decided the first ground, it will be open to us to send back the matter to the Dy. Commissioner. However, since considerable time and effort have been expended by both the sides before us on the first point and since no new facts have to be ascertained we shall decide that first ground also.
4. Regarding the first point that the transfer is not taxable gift the assessee’s representative Invited the Tribunal’s attention to the definition of ‘gift’ under Section 2(xii) the material part of which is as follows: —
‘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.
He submitted that since it was the duty of a HUF to provide for the marriage expenses of the daughter of the karta the transfer could not be said to have been made voluntarily and so it was not a gift relying upon the decision of the Calcutta High Court in CGT v. Basant Kumar Aditya VikramBirla [1982] 137 ITR 72 9 Taxman 206 and also on the Board’s Circular No. 419 dated 1-6-1985 published in 155 ITR (Stat.) page 7 which states that “the Department has accepted in principle, the judgment of the High Court”. He also relied on the decision of the Andhra Pradesh High Court in CGT v. Bandlamudi Subbaiah [1980] 123 ITR 509 to the same effect. He submitted that the gift was given on the occasion of marriage although there was a time gap of six months between the marriage and the gift and explained that this time gap had occurred because the mother-in-law of the daughter had died and so the gift could not be made at the time of the marriage adding that the gift was made on the auspicious day of Diwali. He distinguished the aforesaid decision of the Patna High Court in M.S. Rao’s case (supra) on the ground that in that case there was a very big time gap of one year and four months between the marriage and the gift deed and that the gift was made by the same document by which another gift was made to the assessee’s son.
5. The learned Departmental Representative, on the other hand, first of all submitted that the first contention of the assessee that the transfer did not involve a gift within the said definition was a new point not taken before the GTO and the Dy. Commissioner had not decided on it. If the Tribunal now entertained it that would deprive two lower authorities of their power to decide it. However, as stated above this ground has been taken before the Dy. Commissioner and it would not be reasonable now to send back the matter to the Dy. Commissioner to decide. He then submitted that the Calcutta High Court decision was regarding marriage expenses and not a gift as in this case. Thirdly, he submitted that since the bride’s father and mother were both living, it was their duty to provide for the marriage expenses of the daughter and not that of the HUF. He emphasised the time gap between the marriage and the gift and submitted that between the marriage and the date of gift there were other auspicious days also on which the gift could have been made but that was not done. He also pointed out that there was no evidence that other persons had also postponed making the gifts because of this event. In that connection, he also submitted that there was no bar to giving the gift although the mother-in-law of the daughter might have expired and submitted that there was no nexus between the marriage and the gift. He also pointed out that there was nothing on record to show as to what kind of gifts were made by the father and the mother of the bride and worth how much. Lastly, he submitted that the express provision for marriage gifts under Section 5(1)(viii) excluded any other relief in respect of gifts of that kind. The learned D.R. read and interpreted Section 5(1)(vii) under which exemption has been claimed. The material part thereof is as follows: —
Gift-tax shall not be charged under this Act in respect of gifts made by any person —
(vii) to any relative dependent upon him for support and maintenance on the occasion of the marriage of the relative, subject to a maximum of Rs. 10,000 in value in respect of marriage of each such relative.
He submitted that this section was not applicable because of the words “him” and “relative”. The word ‘him’ excluded any reference to HUF and so did the word “relative” because HUF has no relative but only members. He also submitted that in any case the exemption was not available under this section because the gift was not made on the occasion of the marriage.
6. So far as the first main ground is concerned, there are no words in Section 2(xii) that the gift should be on the occasion of the marriage. In order that a transaction may amount to a gift the section requires that it should be voluntary. Therefore, if it is not voluntary it would not be a gift. The argument that the transfer is not a gift because it is on the occasion of marriage is on the basis of interpretation of the word ‘voluntarily’ in the definition. Here, the decision of the Calcutta High Court in Basant Kumar Adttya Vikram Birla’s case (supra) is relied upon because it was held in that case that it is the legal as well as moral obligation of a Hindu Undivided Family to provide for the marriage expenses of the daughter of a member of the family. The reasoning is that since it is the obligation or the duty of the HUF to provide for those expenses, the expense is not voluntary which means that the transaction is not voluntary and that, therefore, it is not a gift. That is how the requirement that the gift should be on the occasion of marriage is imported into the definition. Now, in that case, the gifts were in fact made at the very time of the marriage and the facts do not show that there was any time gap between the marriage and the gift while in the present case there is a large time gap of about 6 months between the marriage and the making of the gift and it is this time gap which has been the reason for the decisions against the assessee so far. Therefore, the question arises whether even if there is a time gap it can be said that the gift was on the occasion of marriage. In our view, the expression ‘on the occasion of marriage’ is not synonymous with ‘at the time of marriage’. In order that a gift may be considered to be on the occasion of marriage it is not necessary that it should be at the very time of the marriage. What is necessary is that the marriage should be the occasion for the transaction which means that the transaction should have been occasioned by the marriage. We may say that the test would be that but for the marriage the transactions would not have taken place. The Honble Calcutta High Court has quoted the observations of the Supreme Court in an earlier case. The material part of those observations are as follows: —
The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallised into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter.” (at page 78 of the Calcutta High Court’s decision).
The above observations show that (a) it is an obligation or duty, (b) the obligation is of the joint family, and (c) it can be discharged at any time, not necessarily at the time of marriage. These requirements are satisfied in this case. The fact that there is a time gap is not material. The assessee has reasonably explained the reason for the delay in giving the shares. The mother-in-law of the assessee’s daughter had expired. It is true that the marriage was not postponed but it is well-known that once certain ceremonies have taken place the ceremony of marriage itself cannot be postponed. However, anything by way of celebration such as parties, dinners and gifts are generally postponed. It may be true that there might have been earlier auspicious occasions but a reasonable time gap had to be allowed to pass between the death and the celebrations. This is the assessee’s explanation. Therefore, this period of six months is not material. The learned Dy. Commissioner has relied upon the decision of the Patna High Court in the case of M.S. Rao (supra). It is true that in that case only a promise was made at the time of the marriage and the gift was actually made one year and four months later but the above quotation from the Supreme Court decision covers this controversy. The Supreme Court has also gone on to state “the validity or the reasonableness of the gift does not depend upon the plurality of the documents but on the power of the father to make a gift and the reasonableness of the gift so made”. Although this quotation speaks about the plurality of documents and the power of the father, the sum and substance is that it is the obligation or duty which matters. What remains, therefore, to be ascertained is whether the marriage has occasioned the transaction. Now, it is the HUF which has given the shares. It is therefore fair to assume that but for the marriage the shares would not have been given. It is true that the parents of the bride could have given a gift but the fact that they might have given a gift does not mean that there was no obligation of the HUF. It is necessary to remember that we are also dealing with the general proposition as to the obligation of a HUF to incur these expenses on the marriage of the daughter. The learned D.R. has also emphasised that the obligation to bear the expenses did not include the giving of any shares. According to him, the normal custom of ornaments would alone be permissible. We are unable to accept this contention. In the Calcutta High Court’s case (supra) a fridge and cash were also given and if cash could be given there is no reason why shares could not be given because shares can be bought from the cash or even by disposing of the ornaments shares could be bought. The learned D.R. has contended that exemption under Section 5(1)(vii) excludes any other benefit regarding gift but the question of exemption arises only if there is a gift and it is the assessee’s contention here that this is not a case of gift. This contention we have upheld as above. Secondly, Section 5(1)(vii) speaks of a gift to a relative dependent upon him, le., the donor. These words would exclude a HUF. Since it is the obligation of a HUF as stated above to bear the marriage expenses of an unmarried daughter, the discharge of that obligation cannot be taxed and the exclusion from the meaning of the word ‘gift’ would not be covered by Section 5(1)(vii). Consequently, there is no question of any relief under Section 5(1)(vii) covering the assessee’s case. It is not a case of relief because it is a case which is not covered by the definition of ‘gift’. For the above reasons, the transaction cannot be taxed under the Gift-tax Act. The appeal is allowed.