1. At the instance of the accountable person, the Income-tax Appellate Tribunal (hereinafter referred to as ' the Tribunal ') has referred under s. 64(1) of the E.D. Act, 1953 (hereinafter referred to as 'the Act'), the following question of law :
'Whether, on the facts and in the circumstances of the case, the accountable person was entitled to a deduction under section 50 of the Estate Duty Act of the full amount of Rs. 16,348.75 in the computation of the estate duty payable ?'
2. The material facts for deciding the above question are briefly these :
Sri R. Srinivasa Narasimhachary, his wife and their two sons constituted a HUF governed by the Mitakshara law. After his death, his sons applied to the civil court for the grant of a succession certificate in respect of certain debts due to the family and certain shares and securities which belonged to the family. A sum of Rs. 16,348.75 was paid as court-fee for obtaining such succession certificate. The estate which passed on to the accountable person on such death was assessed to estate duty by the Assistant CED. Under s. 50 of the Act, the accountable person thereafter made an application before the Assistant Controller claiming deduction of the amount of Rs. 16,348.75 from the amount of estate duty assessed. The claim was partly allowed and the accountable person was allowed a deduction of only Rs. 6,539.50. The ground on which only a part of the court-fee paid was allowed as deduction, was that the succession certificate obtained was in respect of the entire interest of the joint family in such debts, shares and securities and not in respect of only the interest of the deceased which was to the extent of 4/10 therein which alone passed to his heirs on his death and was liable to estate duty. The accountable person's appeal to the Appellate CED and the further appeal to the Tribunal were unsuccessful.
3. In order to answer the question referred to us, it is necessary to set out the relevant provisions of the Act.
4. Section 5, which is the charging section, provides for levy of a duty called 'estate duty' at the rates fixed in accordance with s. 35 upon the principal value of all property which passes on the death of a person occurring after the commencement of the Act.
5. Section 7 provides that if a member of a Hindu coparcenary governed by the Mitakshara school of law dies, the property which passes on his death will be an interest which he had in the coparcenary property at the time of his death.
6. Sub-section (1) of s. 39 provides that the value of the benefit accruing or arising from the cesser of a coparcenary interest in a joint family property governed by the Mitakshara school of Hindu law which ceases on the death of a member thereof, shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death.
7. Section 34 provides, inter alia, that for the purpose of determining the rate of estate duty to be paid on any property passing on the death of the deceased, the interest in the joint family property of all the lineal descendants of the deceased, shall also be aggregated so as to form one estate and estate duty shall be levied thereon at the rate or rates applicable in respect of the principal value thereof.
8. Section 50 provides that where any fees have been paid under any law relating to court-fees in force in any State for obtaining probate, letters of administration or a succession certificate in respect of any property on which estate duty is leviable under this Act, the amount of the estate duty payable shall be reduced by an amount which is equal to the court-fees so paid.
9. As the estate duty leviable under the Act is only on the value of the property passing on the death of a person it follows that the relief under s. 50 is also limited to the court-fee paid for obtaining probate, letter of administration or succession certificate in respect of what passes on the death of a person, which can only be the share of the deceased in the joint family property. But, in the present case, the accountable person obtained the succession certificate not only in respect of the share of the deceased in the debts, shares and securities of joint family, but in respect of entire debts, shares and securities. Whatever might have been the reason for the accountable person for not confining his application for succession certificate to only the share of the deceased in such debts, shares and securities, no relief under s. 50 can be claimed in respect of the court-fee paid on that portion of debts, shares and securities which did not belong to the deceased, but belonged to other members of the family at the time of his death and on which no estate duty was payable. The Assistant Controller, the Appellate Controller and the Appellate Tribunal have rightly limited the relief to that portion of the court-fee proportionate to the share of the deceased in such debts, shares and securities.
10. However, Sri G. Sarangan, learned counsel for the assessee, contended that the entire amount of court-fee paid for obtaining the succession certificate, should have been allowed to be deducted from the amount of estate duty payable. In support of his contention, he relied on the decision of the Kerala High Court in CED v. P. E. Venkitraman  115 ITR 222. There, on the death of a member of a HUF consisting of himself and his three sons, his one-fourth share in the coparcenary property passed. One of his sons had paid Rs. 5,151.25 as court-fee for obtaining a succession certificate and the assessing authority had granted relief by allowing deduction of the entire amount of court-fee paid. Subsequently, an order of rectification was made limiting such relief to only Rs. 1,600 being the amount of court-fee proportionate to the share of the deceased which alone passed on his death. In appeal, the Appellate Controller held that the entire amount of court-fee shall be deducted and the Tribunal affirmed his decision. On a reference at the instance of the revenue, the Kerala High Court held that s. 50 does not confine the relief to only that part of the court-fee which is proportionate to the share of the deceased passing on his death and that the entire amount of court-fee should be allowed to be deducted. The observations of their Lordships read (p. 226) :
'On the terms of the section, we are unable to confine the expenditure or the deduction only to the proportionate part of the court-fee proportionate to the share of the deceased which passes on his death and in regard to which estate duty has to be assessed. Our attention was called to sections 5, 6, 7, and 39(1) of the Act. These make clear the position as to what is the quantum of the interest that passes on death. But the liability to deduction is governed by section 50 of the Act and by the provisions of the Indian Succession Act and the court-fees Act. On these provisions we think that the accountable person was entitled to deduction of the payment of th entire court-fee.'
11. With great respect to their Lordships, it is difficult to agree with them. Under the Succession Act, probate, letters of administration or a succession certificate need be obtained only in respect of the assets of the deceased which pass on his death. If the deceased was a member of Mitakshara coparcenary and had only a share in the coparcenary property, it is obvious that what passes on his death is only his share and not the entire coparcenary property. This position is made clear by the proviso to s. 6 of the Hindu Succession Act, 1956, which states, inter alia, that when a male Hindu dies after the commencement of that Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by succession on his heirs of certain category. Explanation 1 to that section states that for the purpose of that section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
12. Hence, it follows that relief under s. 50 of the Act should be limited to the court-fee proportionate to the value of the joint family property which passes on the death and on which only estate duty is payable and not on the entire value of the joint family property. The view we have taken receives support from the decision of the Andhra Pradesh High Court in Gunda Bhaskara Rao v. CED : 67ITR309(AP) , which was followed by the Appellate Tribunal. However, Sri Sarangan submitted that s. 34 of the Act, as it stood before it was amended by the Estate Duty (Amendment) Act, 1958 (which came into force on July 1, 1960), was applicable to the facts of Gunda Bhaskara Rao's case : 67ITR309(AP) and that the Andhra Pradesh High Court had wrongly applied that section as amended by that Amendment Act. Sri Sarangan invited our attention to the following sentence in that decision (p. 314) :
'In none of these provisions is there anything to warrant the proposition that the rate leviable on the value of the estate of the deceased is aggregated on the entire estate belonging to the Hindu joint family including the shares of the coparceners, who are alive.'
13. The amendment of s. 34 makes no difference to this case as the amended s. 34 provides for aggregation of the share of the deceased member with the share of his lineal descendants for the purpose of determining the rate of estate duty payable on the share of the deceased which passed on his death.
14. Even if the amended section was wrongly applied to the facts of that case, the ratio of that decision was not affected by that error. In the penultimate para. of the decision, the reasoning of their Lordships reads thus (p. 314) :
'The court-fee which has to be deducted under section 50 is in respect of any property of the deceased upon which estate duty is leviable under the Act, and from that duty which is leviable, the amount which is equal to the court-fees so paid in respect of the share of the property of the deceased has to be deducted. Thus, the word 'leviable' is used in relation to that which is leviable, had there not been any provision for deduction. It is only after the various variations and deductions that are permissible that estate duty could be levied and till then it can only be described as leviable.'
15. We are in respectful agreement with the above reasoning.
16. As a result of the foregoing discussion, our answer to the question referred to us should be in favour of the revenue and against the assessee and is as follows :
'On the facts and in the circumstances of the case, the accountable person was not entitled to a deduction under section 50 of the Estate Duty Act of the full amount of Rs. 16,348.75 in the computation of the estate duty payable.'
17. Having regard to the contrary view taken by the Kerala High Court on the question referred to us, we direct the parties to bear their own costs in this reference.