The onus of proving the bona fides of a gift lies on the assessee, and the Tribunal is entitled to consider all the circumstances in determining whether the gift is genuine or a sham transaction.

Judgment

HIDAYATULLAH, J. : These appeals with special leave were filed by one Kanhaiyalal Lohia, who died during the pendency of the appeals, and who is now represented by the executors appointed under his will. By these appeals, which are consolidated, the appellants question an order dated January 8, 1953, of the Income-tax Appellate Tribunal (Calcutta Bench) in appeals filed by the Department against the order of the Appellate Assistant Commissioner. The Tribunal reversed the order of the Appellate Assistant Commissioner and restored that of the Income-tax Officer. Kanhaiyalal Lohia made petitions under S. 66(1) to the Tribunal, setting out a number of questions of which the following was referred to the High Court :

"Whether in the circumstances of this case where the Income-tax Officer, District III(2), separately assessed the business run in the name of Brijlal Nandkishore as belonging to a partnership firm consisting of Brijlal and Nandkishore, the Income-tax Officer, Non-Companies E. P. T. District can assess the income from the same business in the hands of the assessee?"

This question was answered against him. Kanhaiyalal Lohia also applied under S. 66 (2) to the High Court of Calcutta for reference of the other questions, but failed. No appeal has been filed by him against the order of the High Court refusing to direct the Tribunal to state a case or against the decision on the question referred, and the present appeals have been filed against the decision of the Tribunal.

2. At the hearing of these appeals, we asked counsel for the appellants how, in view of the recent decisions of this Court in Chandi Prasad v. State of Bihar, Civil Appeals Nos. 170 to 172 of 1959, D/- 24-4- 1961 and Indian Aluminium Co. Ltd. v. Commr. of Income-tax, Civil Appeal No. 176 of 1959, D/-24-4-1961 (SC) these appeals were maintainable if the two decisions of the High Court had become final. Mr. A. V. Viswanatha Sastri relied upon the decisions in Dhakeswari Cotton Mills Ltd. v. Commr. of Income-tax, West Bengal, 1955-1 SCR 941: and Baldev Singh v. Commr. of Income-tax, Civil Appeal No. 317 of 1955, D/- 2-9-1960 and pointed out that in those cases, appeals were entertained from the Tribunal s order, though he conceded with his usual frankness that special circumstances must exist: He contended that this was a case in which such circumstances existed. We shall deal with the appeals from that point of view, because unless special circumstances exist, the appeals must be regarded as not competent, in view of our recent rulings above mentioned.

3. Kanhaiyalal Lohia, who was a prosperous dealer in jute had his head office in Calcutta. He had no issue, and his family consisted of his wife, his brother, Brijlal Lohia, and Brijlal s son, Nandkishore Lohia. The properties of Kanhaiyalal Lohia were self-acquired, and he was always assessed as an individual. He maintained accounts according to the Ramnavami year. In his return for the account year, April 14, 1943 to April 1, 1944 (corresponding to the assessment year, 1944-45), he indicated that he had closed down in the middle of 1943 his purchasing centres in East Bengal, which stood in the name of Nandkishore, and that he had gifted to his brother Rs. 5,11,101 on July 12, 1943, and to his nephew, Rs. 2,50,000 on September 30, 1943. He showed income of his East Bengal business only up to the closure of that business.

4. Brijlal and Nandkishore entered into partnership between themselves, and started a business under the name and style of "Brijlal Nandkishore." They took over the purchasing centres in East Bengal. They opened accounts in banks in the name of "Brijlal Nandkishore," and became members of the Baled Jute Association and the Jute Balers Association, and traded in their own names. A deed of partnership between them was also executed on August 5, 1953. The business of Kanhaiyala Lohia and of "Brijlal Nandkishore" was within the jurisdiction of the same Income-tax Officer. In the assessment o