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Controller of Estate Duty Vs. Smt. Sunanda S. Gosavi - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Pune
Decided On
Judge
Reported in(1983)5ITD576(Pune.)
AppellantController of Estate Duty
RespondentSmt. Sunanda S. Gosavi
Excerpt:
1. this is an appeal by the controller against the appellate controller's order dated 21-7-1982 whereby the appellate controller deleted from the principal value of the estate an amount of rs. 52,500 brought to charge by the assistant controller as the value of goodwill forming part of the estate passing on the death of smt. sunanda s.gosavi.2. mr. trimal, the learned departmental representative, stated that for a number of years past at pune, there was a firm that was carrying on business as constructors and civil engineers under the name and style of a.v. bhat & co. the partnership deed which governed the terms of partnership at the time of the deceased's death on 25-7-1977 is a deed dated 1-4-1971. mr. trimal pointed out that the deceased had a 20 per cent share in the goodwill of.....
Judgment:
1. This is an appeal by the Controller against the Appellate Controller's order dated 21-7-1982 whereby the Appellate Controller deleted from the principal value of the estate an amount of Rs. 52,500 brought to charge by the Assistant Controller as the value of goodwill forming part of the estate passing on the death of Smt. Sunanda S.Gosavi.

2. Mr. Trimal, the learned departmental representative, stated that for a number of years past at Pune, there was a firm that was carrying on business as constructors and civil engineers under the name and style of A.V. Bhat & Co. The partnership deed which governed the terms of partnership at the time of the deceased's death on 25-7-1977 is a deed dated 1-4-1971. Mr. Trimal pointed out that the deceased had a 20 per cent share in the goodwill of the firm, but that the accountable person Shri Soumitra S. Gosavi did not return in the account of estate the deceased's share in the goodwill 'on the ground that it. is a common business of construction'. Observing that the firm had 'earned good name in the construction business and is reflected in the profits earned by it at an average over Rs. 1,25,000. The profits so earned are 20 per cent consider ing the closing capital of the partners'. The Assistant Controller considered it proper to assess the value of the deceased's 20 per cent share in the goodwill at Rs. 52,500 and included the same in the principal value of the estate along with the deceased's credit balance of Rs. 31,542 as disclosed in the relevant balance sheet of the firm and concerning which there is no dispute. On appeal against this inclusion of Rs. 52,500, said Mr. Trimal, the Appellate Controller observed that 'the contention of the appellant has to be accepted that there cannot be any addition of the goodwill as there is specific provision in the partnership deed, that there is no goodwill 'on the death or the retirement of the partner'. In coming to this decision the Appellate Controller accepted the submission of the accountable person's representative that the Gujarat High Court decision in CED v.Babubhai Harjivandas [1981] 129 ITR 276 was against the view taken by the Assistant Controller.

3. Mr. Trimal pointed out that reading the partnership deed, it appeared that the Appellate Controller accepted the accountable person's submission that 'there is no goodwill on the death or retirement of the partner' on the basis of Clause 13 of the deed. Mr.

Trimal pointed out that the relevant clause read : 'The retiring partner shall not share in the assets or properties of the firm'. Mr.

Trimal submitted that the principles enunciated in the Gujarat High Court decision relied upon by the Appellate Controller, viz., Babubha's case (supra) have been considered by the Bombay High Court on two occasions, first in Smt. Urmila v. CED [1980] 122 ITR 958 and the second in CED v. N.H. Kotak [1982] 134 ITR 256, respectively. Mr.

Trimal pointed out that in that case according to the Gujarat High Court : ...A clause in the partnership deed provided that, 'if any partner retires or goes out for any reason from the partnership or for any reason goes out or expires, then, at that time, no goodwill shall be considered of the firm and nothing shall be payable towards goodwill to such partners.... (pp. 276-77) And on that basis the Court held "...the value of the share of the deceased in the goodwill of the firm, could not be included in the principal value of the estate of the deceased." (p. 277) Now Mr. Trimal pointed out that the Gujarat High Court came to this decision following their earlier decision in Smt. Mrudula Nareshchandra v. CED [1975] 100 ITR 297. Mr. Trimal then submitted that on the first occasion in Urmila's case (supra) the Bombay High Court distinguished the principles laid down by the Gujarat High Court in Nareshchandra's case (supra) and followed by the Gujarat High Court in its subsequent decision in Babubhai's case (supra). According to the Bombay High Court, where a clause in the partnership deed provided that: ...the share of the partner dying...shall accrue to the surviving partners...in proportion to their respective shares subject only to payment to the legal representatives of the deceased partner . . .

his share and interest at death ... as ascertained by a general account to be made as on the date of death with all proper valuation but without valuation or allowance or payment for goodwill. In the case of death . . . the surviving partners . . . shall be entitled to the goodwill of the partnership business without making any payment or compensation to the legal representatives of the deceased partner in respect of goodwill and the intention is that the goodwill shall accrue to and belong to the surviving...partners without any valuation of or allowance for goodwill....(pp. 958-59) That clause contemplated computation of the share of the deceased in all the assets including the share in the liabilities, the share of the deceased in the goodwill of the firm was includible in the principal value of his estate under Section 5 of the Estate Duty Act, 1953 ('the Act'). Mr. Trimal pointed out that in the subsequent decision in Kotak's case (supra), concerned with a clause similar to the clause as in Urmila's case (supra), the Bombay High Court held : ...The deceased's share in the goodwill of the firm did not go to his legal representatives but devolved on the surviving partners.

The value of the deceased's share in the goodwill of the firm had to be included in his dutiable estate having regard to the provisions of Section 7 of the Estate Duty Act, 1953. (pp. 256-57) It was Mr. Trimal's case that in the instant case, properly understanding the partnership as a whole, it must follow that the deceased's share in the goodwill devolved on the surviving partners and as such there was passing on the death of the deceased on 25-7-1977.

Mr. Trimal further brought to our notice yet another decision of the Bombay High Court in CED v. Fakirchand Fatehchand Sachdev [1982] 134 ITR 268. The Court has observed, pointed out Mr. Trimal : ...Where a partnership is dissolved by the death of a partner, his share in the firm passes on his death to his legal representatives.

Where partnership is not dissolved on the death of a partner but the surviving partners become entitled to continue the partnership business, the deceased partner's share passes to his surviving partners subject to their making payment to the legal representatives of the deceased partner of the amount of the value of his share in accordance with the provisions of the deed of partnership....(pp. 268-69) 4. It was as such Mr. Trimal's submission that in the instant case, properly understanding Clause 13 of the partnership deed, on the death of the deceased her interest in the goodwill, which most certainly was one of the properties or intangible assets of the partnership in which the deceased had a share, passed to the surviving partners. Mr. Trimal urged that the Court's later observations to be seen in the headnote ...In the valuation of a deceased partner's share for the purposes of the Estate Duty Act it is not open, to the department to pick up only one item out of the partnership properties or the assets of the firm and proceed upon the basis that the deceased had a specified share in it, because no partner has a defined share in the individual assets or properties of the firm....(p. 269) cannot be interpreted against the department, inasmuch as the Assistant Controller primarily accepted the valuation of the assets and liabilities of the firm as recorded in the relevant balance sheet of the firm with the only modification that the Assistant Controller proceeded to include in the principal value of the estate passing on the death of the deceased the deceased's share in that admitted property of the firm but which was not recorded in the firm's books of account. As such, it was Mr. Trimai's submission that in view of the Bombay High Court's these three decisions and supported by a yet later decision in CED v. G.H. Malhotra [1983] 13 Taxman 540, the decision of the Appellate Controller ought to be reversed.

5. Now, on this issue specifically Mr. Trimal brought to our notice para graph 5 of the Bombay High Court's decision in Malhotra's case (supra) and pointed out the observations thus : ...we find that the question is really concluded against the assessee by the decision of this Court in CED v. Fakirchand Fatehchand Sachdev [1982] 134 ITR 268 (Bom.). In that case, it has been held that the charg ing provisions and the computation provisions in the Estate Duty Act, 1953, constitute an integrated scheme and if in a given case it is not-possible to compute the value of a particular property passing on death, then that property does not become exigible to the charge of estate duty. It has been further held that the goodwill of a firm is one of the properties or assets of a firm. Merely because it is an intangible asset, it does not stand on a different footing from the tangible assets of the firm, but in making up the final accounts it is to be taken together with the other assets of the firm in arriving at the value of the total assets and for deducting therefrom the liabilities as provided by law and in paying to the partners their share in the balance so arrived at. Where a partnership is dissolved by the death of a partner, his share in the firm passes on his death to his legal representatives. In the valuation of a deceased partner's share for the purposes of the Estate Duty Act, it is not open to the depart ment to pick up only one item out of the partnership properties or the assets of the firm and proceed upon the basis that the deceased had a specified share in it, because no partner has a defined share in the individual assets or properties of the firm. His share is in the totality of the properties of the firm less the liabilities thereof. If, for the purpose of valuing a partner's share in the firm, the department picks up just one or two items out of the total assets or properties upon the basis that the deceased had a defined share in it or them, ignoring the other assets and the liabilities of the firm, the valuation made is unjustified and unsustainable in law....(p. 543) Mr. Trimal submits that this criticism cannot be levied against the order made by the Assistant Controller before us today, as it was not the contention of the accountable person that any assets other than goodwill and liabilities of the firm were not recorded in the books of the firm at proper value. Mr. Trimal submitted that as such all what the Assistant Controller did was to include in the principal value of the estate passing on death the deceased's share in the property of the firm that was not accounted in the books of the firm. In the final analysis, Mr Trimal urged that the Controller's appeal ought to be accepted.

6. Before dealing with the submissions made by Mr. Gadgil, the accountable person's learned counsel, it would be advisable to refer to certain queries raised during the course of Mr. Trimal's address and the replies thereto by the accountable person's counsel.

Now manifest it is that Mr. Trimal primarily had relied on Clause 13 of the partnership deed. At that stage attention of Mr. Gadgil was drawn to Clause 15 of the partnership deed which provided : In case of death or retirement of any partner, the partnership shall not be dissolved but shall be continued by the remaining partner or by taking a new partner or the nominee of such deceased partner into the partnership and the firm shall be continued.

In reply to the query whether in terms of Clause 15, there was any nomination made by the deceased, Mr. Gadgil stated that there was no such nomination effected by the deceased. It was further explained by Mr. Gadgil that the five partners of A.V. Bhat & Co. belonged to three different families unrelated to each other such that the first Shri Ashok Vinayak Bhat is the son of the fifth Smt. Kamalabai Vinayak Bhat and the second Shri Sharadchandra Krishna Belvalkar is the brother of the fourth Shri Sadananda Krishna Belvalkar and the deceased was partner No. 3 Smt. Sunanda Soumitra Gosavi. Mr. Gadgil further stated that on the death of the deceased the remaining 4 partners continued the business as equal partners so that the share of each of the continuing partners which earlier was 20 per cent stood enhanced to 25 per cent in the property of the firm.

7. At the outset of his submissions, Mr. Gadgil fairly pointed out that the Appellate Controller relied wholly on the provisions of Clause 13 of the partnership deed. It was Mr. Gadgil's submission that the relevant clauses are clauses 13, 15 and 16. Mr. Gadgil also added that Clause 14 also had some relevance. Since our attention was specifically drawn to Clause 13 and we drew the attention of the parties to Clause 15 to which we have made a reference earlier, it may be advisable to refer to the other two relevant clauses brought to our notice. Clause 14 provided : In the case of death of any partner, the heirs will be entitled to the profits of the firm for every completed month preceding his death as if the profits were evenly earned during the, year. The deceased partner's share in such profits shall be credited to his account at the end of the accounting year.

In case of death or retirement of any partner, the remaining partners are hereby authorised to receive moneys due to the firm, to pass valid receipts for the same, to collect book debts, to sue for claims and dues of firm, to pay the liabilities of the firm and to operate the bank account as if no change has taken place.

It was Mr. Gadgil's submission that the partnership did not make any distinction between a person going out on retirement and as such ceasing to be a partner or a partner dying and as such ceasing to be a partner. For this purpose, Mr. Gadgil primarily relied on Clause 13. It was Mr. Gadgil's submission that considering the relevant clauses of the partnership deed, there was no distinction between the consequence following on a voluntary retirement and a person ceasing to be a partner on his death. For this purpose, said Mr. Gadgil, he had no authority in support of his submission.

8. At that stage, Mr. Gadgil's attention was drawn to Clause 15 to which we have made a reference earlier which provides : In case of death or retirement of any partner, the partnership shall not be dissolved but shall be continued by the remaining partner or by taking a new partner or the nominee of such deceased partner into the partnership and the firm shall be continued.

As such it was pointed out to Mr. Gadgil that Clause 15 specifically makes a distinction between a fact of a partner's ceasing to a partner: (i) on account of death, or (ii) on retirement. As such, Mr. Gadgil was asked to comment whether it would be correct to say that in Clause 13 the expression 'retiring partner' took in its compass only the case of a partner ceasing to be a partner on retirement as commonly understood but also that of as a person ceasing to be a partner on account of his death. Mr. Gadgil submitted that it would be advisable for him not to answer the query specifically as it was his case that the Appellate Controller's decision was correct even on the basis of the assumption that Clause 13 was not applicable. In the circums tances, we have to consider it proper not to make any further reference to this part of the controversy.

9. After giving the facts, it was Mr. Gadgil's contention that to under stand the relationship of the five signatories to the partnership deed dated 1-4-1971 and the rights of one against each of the other four, primarily one has to read the deed as a whole. Proceeding on that basis and the facts as discussed by the order of the Assistant Controller to which our attention was drawn both by Mr. Trimal and Mr. Gadgil himself, it was Mr. Gadgil's submission that the Assistant Controller had not proceeded properly to evaluate the deceased's share in the totality of the net property and assets of the firm, but that the Assistant Controller had merely picked out one property of the firm that was not recorded and validly recorded in the books of the firm and included the deceased's share in such property namely, Rs. 52,500 in the principal value of the estate passing on death. According to Mr.

Gadgil, the decision of the Appellate Controller was wholly correct if one properly appreciated the decision of the Bombay High Court in Fakirchand's case (supra). It was Mr. Gadgil's contention that the manner in which the Assistant Controller in any one of the three references heard conjointly by the Bombay High Court, wherein the decision in Fakirchand's case (supra) had proceeded to include in the principal value of the estate the deceased's proportionate share in the goodwill is exactly in the same manner as the Assistant Controller has dealt in the case before us today. We find merit in this particular submission by Mr. Gadgil. Thereafter, Mr. Gadgil drew our attention to the discussion of this issue by the Court at pages 278 onwards and in particular the summing up of the Court's conclusions from pages 307 to 309. More particularly, Mr. Gadgil brought to our notice the 16th conclusion thus : ...In the valuation of a deceased partner's share for the purposes of the Estate Duty Act, 1953, it is not open to the department to pick up only one item out of the partnership properties or the assets of the firm and proceed upon the basis that the deceased had a specified share in it, because no partner has a defined share in the individual assets or properties of the firm. His share is in the totality of the properties of the firm less the liabilities thereof.

If for the purpose of valuing a partner's share in the firm the department picks up just one or two items out of the total assets or properties upon the basis that the deceased had a defined share in it or them, ignoring the other assets and the liabilities of the firm, the valuation made is unjustified and unsustainable in law.

(p. 309) In conclusion on this part of his submission, Mr. Gadgil then drew our attention to the conclusion Nos. 17 and 18 thus : (17) It is not necessary for the purposes of the present references to decide which would be the proper method for computing the value of a deceased partner's share in the firm.

(18) In each of the three references before us the department has proceeded upon the aforesaid wrong basis, and, therefore, the valuation made by it cannot be sustained. (p. 310) According to Mr. Gadgil, as such, considering properly the Assistant Controller's stand the appeal by the Controller deserved to be dismissed.

10. Mr. Gadgil left naturally to the very last, the consideration of the latest Bombay High Court decision in Malhotra's case (supra) Mr.

Gadgil submitted that Mr. Trimal had rightly read para 5, but up to a stage only. Mr. Gadgil brought to our notice the subsequent observations in the said para thus : ...A partner does not have a defined share in the goodwill of the firm and the estate duty authorities cannot regard it as a separate property by itself apart from the other assets and liabilities of the firm and include its value in the estate of a deceased partner under Section 5 of the Act. Mr. Mehta, relying upon this decision, contended before us that the addition of Rs. 10,000 on account of the value of the share of the said deceased in the goodwill of the said firm was erroneous as it was on the footing that the goodwill of the said firm constituted a separate property by itself apart from other assets and liabilities and that it was not open to the estate duty authorities to value the share of the said deceased in a particular asset of the firm as such. In our view, this submission cannot be sustained. A perusal of the order of the Assistant Controller clearly shows that he has not attempted to pick out separately any of the assets of the firm and to tax the share of the said deceased in that asset.... (p. 543) Mr. Gadgil submits that the Court came to this decision on the basis of the fact that it was "not in dispute that this was the correct value of the share of the said deceased in the assets of the firm other than the goodwill and all Assistant Controller has done is to add the amount of the share of the deceased in the goodwill of the firm to this amount.

There is no attempt, in our view, by the estate duty authorities to pick out any particular asset of the firm and to tax separately the share of the deceased therein". Mr. Gadgil submits that in Malhotra's case (supra) on facts there was no dispute that Rs. 10,000 was the proper value of the deceased's share in the goodwill of the firm. Mr.

Gadgil submits that inasmuch as in the present case there is a dispute, as evidenced by the grounds taken by the accountable person before the Appellate Controller, regarding the valuation of the goodwill. Properly speaking the decision in Malhotra's case (supra) which is given on concession cannot be applicable to the facts of the present case and that correctly speaking what is applicable is the Bombay High Court's earlier decision in the case of Fakirchand (supra).

11. Understanding properly, the facts as disclosed by the order of the Assistant Controller and as brought to our notice and the facts in Fakirchand's case (supra) and Malhotra's case (supra) ase xplained by Mr. Gadgil, we find that the Assistant Controller's approach in the present case is identical with the approach in Fakirchand's case (supra) but not with Malhotra's case (supra). Manifestly there is merit in Mr. Gadgil's submission that in the present case, the Assistant Controller has proceeded to pick out a particular asset of the firm and to tax separately the share of the deceased in such asset.

12. However, in our understanding, our acceptance of Mr. Gadgil's submissions as referred to above does not and cannot mean that the proper order that we can pass is to dismiss the Controller's appeal. We brought to the notice of Mr. Gadgil the decision of the Supreme Court in Kapurchand Shrimal v. CIT [1981] 131 ITR 451. Now that was a case under Section 25A of the 1922 Act, wherein the decision of the Tribunal was that : ... the assessment is liable to be set aside in appeal as it is in clear violation of the procedure prescribed for that purpose.... (p.

451) As such the Tribunal had set aside the order. On reference by the department to the High Court and on further appeal by the taxpayer to the Supreme Court, the Supreme Court observed as would be seen from the headnote : ... When the Tribunal holds that such an assessment is liable to be set aside, the duty of the Tribunal does not end with making a declaration that the assessment is illegal. The proper order to be passed in such a case would be to set aside the assessment and to direct the ITO to make a fresh assessment in accordance with the procedure prescribed by law. It would not be correct merely to uphold the assessment and direct the ITO to make appropriate modifications.

It is well known that an appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh, unless forbidden from doing so by statute. (p. 451) The attention of Mr. Gadgil was further invited by us to the decision of the Madras High Court in CIT v. Indian Express (Madurai) (P.) Ltd. [1983] 140 ITR 705. After considering the principles laid down by them in CIT v. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 (SC) and CIT v. S. Nelliappan [1967] 66 ITR 722 (SC) and the observations of the Court of Appeal in the cases of IRC v. Sneath [1932] 17 TC 149 and Rex Special Comrs. v. [1936] 20 TC 381 and a Full Bench decision of the Madras High Court handed over on 2-11-1982 in State of Tamil Nadu v.Arulmwugan & Co. [1982] 51 STC 381 and in Indian Express's case (supra), the Supreme Court observed : An appellate authority under the taxing enactments sits in appeal, only in a manner of speaking. What it does, functionally, is only to adjust the assessment of the appellant in accordance with the facts on the record and in accordance with the law laid down by the Legislature. An appeal is a continuation of the process of assessment and an assessment is but another name for adjustment of the tax liability to accord with the taxable event in the particular taxpayer's case. There can be no analogy or parallel between a tax appeal and an appeal, say, in civil cases .... The appellate authority can itself enter the arena of assessment, either by pursuing further investigation or causing further investigation to be done, it can do so on its own initiative, without being prodded by any of the parties. It can enhance the assessment, taking advantage of the opportunity afforded by the taxpayer's appeal, even though the appeal itself has been mooted only with a view to a reduction in the assessment. These are special and exceptional attributes of the jurisdiction of a tax appellate authority. These attributes underline the truth that the appellate authority is no different, functionally and substantially, from the assessing authority itself. (pp. 724-25) On this the summing up of the observations by Mr. Justice Balasubrah-manyan are to be seen thus : ... that both on principle and on precedent, there is no reason why the Appellate Tribunal must be precluded from handling a point which appertains to the assessee's assessment merely because nobody else had handled it before or because it had not occurred either to the assessee or to the department to raise and urge that point at earlier stages of the proceedings. (p. 725) 13. Now on this basis we sought enlightenment from Mr. Gadgil whether the facts of the present case justify our giving a direction to the Assistant Controller to properly include in the principal value of the estate passing on the death of the deceased on 25-7-1977, the deceased's right, title and interest in the property of the firm as evidenced by the partnership books of accounts and the transactions in the light of the terms of the partnership deed dated 1-4-1971. Mr.

Gadgil fairly pointed out that if patently or otherwise the decision of the Assistant Controller in the manner in which he has proceeded to make the assessment is wrong, considering the law handed down by the Supreme Court and as brought to his notice, viz., Kapurchand ShrimaVs case (supra) and Indian Express's case (supra). It was a decision which primarily we had to take and that he fairly speaking could not raise prime facie a valid objection against such direction. Mr. Gadgil, however, submitted that in such a direction to be given to the Assistant Controller it should be made abundantly clear that the Assistant Controller will have to value the deceased's right, title and interest in the property of the firm as evidenced by all the transactions of the firm up to the date of the death and in the light of the partnership deed dated 1-4-1971 taking into consideration the principles enunciated by the Bombay High Court and more particularly in the two decisions, namely Fakirchand's case (supra) and Malhotra's case (supra).

14. We find that Mr. Gadgil is eminently fair. At that stage, Mr.

Gadgil submitted that according to him prima facie the Assistant Controller's approach was erroneous as to the manner in which he proceeded to bring to tax by including separately under the head movable property, following three items :(i) Capital in A.V. Bhat & Co.

31,542(ii) Profit till date of death as.

year 1978-79 1,152(iii) Goodwill as discussed above 52,500 Mr. Gadgil particularly and naturally has serious objections against the Assistant Controller's action in computing the deceased's share in the goodwill of the firm at Rs. 52,556 which has been rounded off to Rs. 52,500. Mr. Gadgil filed before us a statement which is being annexed to this order. It is Mr. Gadgil's submission that at best, subject to examination of the issue whether all the liabilities of the firm have been properly accounted in the books of the firm, the deceased's share in the goodwill would be only Rs. 19,700 as against the Assistant Controller's valuation of Rs. 52,500. As regards the liabilities, it was Mr. Gadgil's submission that considering the assessee's business one could not rule out a pending or apprehended litigation and that litigation means a liability, a contingent liability, which could not be recorded in the books unless it has crystallized. As such, it was Mr. Gadgil's submission that while computing the deceased's share of right, title and interest in the totality of the net assets of the firm, the Assistant Controller should be directed specifically to enquire whether proper accounting of all the liabilities and valuation of contingent liability as well has been made.

15. With regards the later part of the submissions of Mr. Gadgil and Mr. Gadgil's reply to the queries put by us, Mr. Trimal had nothing special to urge.

16. Having heard the parties and considering the principles as laid down by the various Courts and brought to our notice, we find that the present is a proper case where as observed by the Supreme Court we should and in fact we ought to 'enter the arena of assessment' by 'causing further investigation to be done without being prodded by any of the parties'. As such we give the directions as referred to earlier in para 13 which we reproduce once again as under. We direct the Assistant Controller to properly include in the principal value of the estate passing on the death of the deceased on 25-7-1977, deceased's right, title and interest in the property of the firm as evidenced by the partnership books of accounts and the transactions in the light of the terms of the partnership deed dated 1-4-1971. We further direct that the Assistant Controller should value the deceased's right, title and interest in the property of the firm as evidenced by all the transactions of the firm up to the date of the death and in the light of the partnership deed dated 1-4-1971 taking into consideration the principles enunciated by the Bombay High Court and more particularly in the two decisions, viz., in the case of Fakirchand (supra) and Malhotra's case (supra).


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