IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 GTA.No. 12 of 2009() -------------------- AGAINST THE ORDER DATED 31/12/2002 IN GTA.5/COCH/1998 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT: --------------------------------------- THE COMMISSIONER OF GIFT TAX, COCHIN. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): RESPONDENT ------------------------- SHRI.P.I.VARGHESE, PALAL HOUSE, KAKKANAD. THIS GIFT TAX APPEAL HAVING COME UP FOR ADMISSION ALONG WITH GTA NO.14/2009 ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... G.T. Appeal Nos.12 & 14 of 2009 .................................................................... Dated this the 25th day of August, 2009. JUDGMENT Ramachandran Nair, J. Heard Standing Counsel appearing for the appellant. Question raised is whether assessee is liable to pay gift tax relating to the withdrawals of cash from the account by assessee's wife and children. However, after hearing the counsel and after going through the orders of the Tribunal and that of the lower authorities, we do not find any question of law arising in the matter because assessee's case that the contract work was accepted by AOP consisting of himself, his wife and children was rejected by the department. In fact, the withdrawal of cash from the common account was only to show that the business was done by the AOP which was not accepted by the department in the income tax assessment. When the department rejects the case of the assessee in the income tax assessment, they cannot make the gift tax 2 assessment treating the cash withdrawals by the family members as gift by the assessee. Consequently we uphold the orders of the Tribunal and dismiss the appeals. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms