Judgment :- R. JAYASIMHA BABU, J. A partition between the father and son, made on June 18, 1972, had been accepted by the Department by an order made under section 171 of the Income-tax Act, 1961. Despite that, gift-tax proceedings were initiated for the assessment years 1979-80, 1980-81 and 1981-82. Those proceedings were rightly set aside in appeal by the Commissioner (Appeals). The Commissioner's finding was confirmed by the Tribunal. The Revenue has chosen to seek a reference with regard to the correctness of the order of the Tribunal. When the Department had itself admitted that the property had belonged to a Hindu undivided family consisting of the father and the son, and has accepted the partition between the two, it cannot allege that the share allotted to the son, by making appropriate entries in the books of account, amounted to a gift. It is elementary that in a Hindu undivided family, a coparcener has a right by birth, the son was as much entitled to the property of a Hindu undivided family as the father was. The division effected between the two would not result in a gift one to the another. The question (Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the share of the property transferred to karta's son, cannot be subjected to gift-tax when the validity of the partial portion without proper apportionment of the assets of the firm is being questioned in the appellate proceedings ?) referred to us is answered in favour of the assessee and against the Revenue. The assessee shall be entitled to costs of a sum of Rs. 1, 500.