1. This is a reference on a case stated under S. 64(1) of the E.D. Act,1953. The question referred to us for our determination in this reference is as follows :
'Whether, on the facts and in the circumstances of the case, the donation of Rs. 1,00,000 made for public charitable purposes is dutiable in terms of section 9 of the Estate Duty Act, 1953 ?'
2. The facts giving rise to the reference, which are relevant for our purposes, can be very briefly stated. The deceased Parvatibai Parsram Dabrai died on 14th September, 1966. On 29 th August, 1966, that is, less than one month prior to her death, the deceased had given a cash donation of Rs. 1,00,000 for public charitable purposes to an institution called Seva Sadan. The Assistant Controller, in assessing the estate of the said deceased to estate duty, included the said sum in the dutiable estate of the deceased. He held that this sum was liable to be included in the dutiable estate under the provisions of s. 9 of the E.D. Act, 1953, as a gift made within six months prior to the death of the deceased. The appeal preferred by the accountable person to the Appellate Controller was dismissed and so also the appeal preferred by the accountable person before the Tribunal. It is from this decision of the Tribunal that the aforesaid question has been referred to us.
Sub-s. (1) of s. 9 of the E.D. Act, as it stood at the relevant time read thus :
9. (1) 'Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made one year before the death of the deceased shall be deemed to pass on the death :
Provided that in the case of gifts made for public charitable purpose the period shall be six months.'
3. Mr. Vakil, learned counsel for the accountable person, made two submission before us. His trust submission was that what is contemplated as taxable under sub-s. (1) of s. 9 is a gift and that a donation to a charitable institution is different from a gift. It was submitted by him that 'gift' and 'donation' are two distinct concepts and that 'gift' and 'donation' are mutually exclusive. It was pointed out by him that the unlike the G.T. Act, the E.D. Act does not contain any definition of the term 'gift' and hence that term would have to be interpreted in accordance with common parlance. It was urged by him that it is only payments to individuals without consideration that are considered as gifts and when amounts are given to charitable institutions or public institutions, they are called donations. In our view, there is no substance whatever in this contention. It is true that when amounts are given to public institutions by way of charity they are normally referred to as donations, but there is no warrant for saying that in common parlance or in legal terminology, gifts and donations can be regarded as mutually exclusive. It is only a monetary gift to an institution which is called a donation. Donation is thus only a type of gift. That this is so can be seen from the definition of the term 'donation' contained in the Concise Oxford Dictionary, sixth edition (page 307), where a donation is defined as follows :
'Bestowal, presenting; thing presented, gift (esp. of money given to institution).'
4. A similar definition is to be found in New Webster's Dictionary, Deluxe Encyclopaedic Edition. This definition clearly shows that 'donation' is merely regarded as a category of 'gift'; and thus a donation is clearly included in the term 'gift' used in s. 9 of the E.D. Act.
5. The next submission of Mr. Vakil was that as the gift or donation was made bona fide by the deceased, the provisions of sub-s. (1) of s. 9 are not applicable to such a donation at all. According to Mr. Vakil, in order to be included in the property which passes on the death, a gift or donation must not have been made bona fide and must not have been made more than one year prior to the death of the deceased.
6. In our view, this submission involves a clear misreading of the provision of sub-s. (1) of s. 9. A plain reading of the said sub-section shows that in order not to be included in the property which passes on the death of the deceased, the gift inter vivos must have been made bona fide and made at least one year before the death of the deceased. In the case of a gift to charity, the period prescribed was 6 months instead of one year. Hence the second submission of Mr. Vakil must also be rejected.
7. In the result, the question referred to us is answered in the affirmative and against the assessee.