AIR 1980 SUPREME COURT 142 ::1980 TAX. L. R. 95 ::1979 SCC (Tax) 346 ::(1979) 2 SCWR 258 ::(1979) CurTaxRep 389 ::1979 (4) SCC 265 ::1980 (1) ITJ 311 ::(1980) 1 SCR 527 (SC) ::1980 (1) SCR 527 ::1980 (1) SCJ 339 ::(1979) 2 Taxman 307 ::(1979) 54 Taxation 189 ::1979 54 Taxation 189 ::1979 2 SCWR 258 ::(1979) 120 ITR 456

Supreme Court Of India

(From : 1972 Tax LR 119 (Punj and Har) (FB))

Hon'ble Judge(s): N. L. Untwalia, R. S. Pathak, E. S. Venkataramiah , JJJ

Estate Duty Act (34 of 1953) , S.10— Gift of partnership property by partner - Applicability of S. 10 - Principles to be followed. When a property is gifted by a donor the possession and enjoyment of which is allowed to a partnership firm in which the donor is a partner, then the mere fact of the donor sharing the enjoyment or the benefit in the property is not sufficient for the application of S. 10 of the Act until and unless such enjoyment or benefit is clearly referable to the gift, i.e., to the parting with such enjoyment or benefit by the donee or permitting the donor to share them out of the bundle @page-SC143 of rights gifted in the property. If the possession, enjoyment or benefit of the donor in the property is consistent with the other facts and circumstances of the case, other than those of the factum of gift, then it cannot be said that the donee had not retained the possession and enjoyment of the property to the entire exclusion of the donor, or, to the entire exclusion of the donor in any benefit to him by contract or otherwise. It makes no difference whether the donee is a partner in the firm from before or is taken as such at the time of the gift or he becomes a creditor of the partnership firm by allowing it to make use of the gifted property for the purposes of the partnership. .....