1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION GIFT TAX REFERENCE NO. 1 OF 1997 The Commissioner of Gift Tax, Bombay City III .. Applicant V/s M/s Unique Constructions .. Respondent Mr. P.S. Sahadevan for the applicant. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATE : 17TH AUGUST 2009 P.C. : 1. We find from the order of the learned Tribunal that there was arbitration award wherein five flats were held to be the personal assets of the five persons in whose names the flats were standing. The learned Tribunal also noted the order of the CIT (A) dated 7th September 1992 rendered in Appeal No. CIT(A) XVIII/32/92-93 in income tax proceedings for the A.Y. 1985-86 wherein CIT (A) deleted the estimated profits on transfer of flats and stated that there was no material on record to prove that through the mechanism of the sham dispute, the partners had appointed an arbitrator, who in turn through his award gave one flat each to the five partners. 2 2. The learned Tribunal has thereafter referred to a judgment of the Calcutta High Court in Aminchand Pyarelal v. GTO, 185 ITR 264, wherein the Calcutta High Court had taken a view that the firm is not included in the definition of “person” under section 2(xviii) of the Gift Tax Act, 1958. 3. The learned Tribunal has recorded that in the award the partners were treated as the real owners of the flats, but how the dispute dropped was not clear to it. 4. In our opinion, once there was an award and that award has not been set aside and the Commissioner (Appeals) I.T. has accepted the same, the question of law as framed does not arise and hence the reference is returned unanswered (D.G. KARNIK, J.) (F.I. REBELLO, J.)