Rama Jois, J.
1. The Income-tax Appellate Tribunal, Bangalore Bench, has referred the following question for the opinion of this court under s. 64(1) of the E.D. Act, 1953:
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the value of the property bearing Municipal No. 2, Artillery Road, Bangalore, held by the nominal owner, viz., the late Smt. Bagirathiammal was not includible in the principal value of the estate passing on the death of Smt. Bagirathiammal ?'
2. The reference arises out of the assessment to estate duty of the estate passing on the death of one Smt. Bagirathiammal, who died on March 18, 1968. Her husband, Shri K. C. D. Swamy, has been treated as the accountable person. During the pendency of this reference, Shri K. C. D. Swamy also died and his legal representatives have been brought on record as respondents.
3. The accountable person started his career as an army soldier clerk in the Indian Army at Rangoon. He rose to higher positions and ultimately he was personal assistant to the President of the Union of Burma. In view of the political situation in Burma, his wife and children were sent permanently to India in the year 1953. They settled down in Bangalore by the end of 1954. He was sending an amount of Rs. 600 per month for the maintenance of his wife and nine children. A house property was purchased on October 29, 1954, for a sum of Rs. 19,000 by Bagirathiammal. Later, the property was further developed. On the death of Bagirathiammal proceedings were instituted under the E.D. Act for bringing the estate of the deceased to tax under the Act. Before the Asst. Controller, the accountable person submitted that the property really belonged to him and Bagirathiammal was only a benamidar. This plea was rejected by the Asst. Controller. On appeal, the Appellate Controller accepted the plea of the accountable person that the property really belonged to the accountable person and the deceased was only a benamidar. Aggrieved by this order, the Estate Duty Controller preferred an appeal before the Appellate Tribunal. By an order dated July 23, 1974, the Tribunal confirmed the appellate order. Thereafter, at the instance of the Controller, the question set out earlier has been referred for the opinion of this court.
4. The Appellate Controller and the Tribunal came to the conclusion that Bagirathiammal was only a benamidar and the property really belonged to the accountable person on the basis of the following facts; the accountable person was sending a sum of Rs. 600 per month to his wife for maintenance of herself and children through Lloyds Bank Ltd., Rangoon and Calcutta. He remitted a sum of Rs. 25,000 to a joint account in the name of himself and his wife in the Imperial Bank of India, Cuddalore. It is from this account that a sum of Rs. 19,000 was transferred on September 27, 1954, to an account in the name of Bagirathiammal in the Imperial Bank of India, Bangalore. On October 12, 1964, a further sum of Rs. 6,000 was transferred to meet the registration and other expenses. The property bearing municipal No. 2, Artillery Road, Civil Station, Bangalore, was purchased by a registered sale deed dated October 29, 1954, for a sum of Rs. 19,000 in the name of Bagirathiammal. Shortly before that, the accountable person had come to Bangalore for finalising the sale of the property. Bagirathiammal had no other source of income. The accountable person returned to India in or about the year 1960. Thereafter there were in all three mortgages. Each mortgage of the property for the purpose of taking loan was jointly executed by Bagirathiammal and Sri. Swamy. The first mortgage was on September 27, 1963, for a sum of Rs. 30,000 in favour of Smt. Leila Marathey. A further mortgage was effected on February 15, 1965, by borrowing Rs. 20,000 from the same lady. A further sum of Rs. 20,000 was borrowed from one J. Venkataswamappa on simple mortgage of the same property. Premises No. 2, Artillery Road, Civil Station, Bangalore, which was the subject-matter of all the three mortgages, was the same which had been purchased in the name of Bagirathiammal out of the money sent by Sri Swamy. On the basis of the above material the Tribunal concluded that there was overwhelming evidence to indicate that Bagirathiammal was only a benamidar and that the property really belonged to the accountable person and there was no intention on the part of Swamy to make a gift of the property or the money out of which the property was purchased, when the money was made available for the purchase of the property. In fact, there is no evidence to the contrary.
5. As held by the Supreme Court in the case of Sree Meenakshi Mills Ltd. v. CIT : 31ITR28(SC) , the finding that a transaction is a benami, does not involve the application of any principle of law to the facts established in evidence and is a pure question of fact. The Supreme Court has also further observed that such a finding recorded by the Tribunal could not be made the subject-matter of a reference under s. 66 of the Indian I.T. Act. The ratio of the said decision applies on all fours to the facts of this case. The finding that the deceased was only a benamidar is based on consistent and cogent evidence on record and cannot be characterised as perverse or as a finding based on no evidence.
6. In the result, we answer the question in the affirmative, that is, against the department.