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Controller of Estate Duty Vs. Estate of Late Bhavarilal - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Madras
Decided On
Judge
Reported in(1983)5ITD530(Mad.)
AppellantController of Estate Duty
RespondentEstate of Late Bhavarilal
Excerpt:
.....the effect of the transaction by which ordinarily the property concerned cannot be regarded as the deceased's property. if it falls within the mischief of any of these provisions, then the property has to be regarded as belonging to the deceased and deemed to pass on his death. it may be that the alienated property may fall within the purview of only one of these sections aimed at ignoring the transaction of alienation or it may fall in one or more of such provisions. in such a case, what is sought to be included or disallowed under one or more of the provisions, is the value of that particular property and by its inclusion once in the property of the deceased deemed to pass on death, there is nothing further left for inclusion. the various deeming provisions may be applied to rope in.....
Judgment:
1. This appeal is by the department and it relates to the estate duty assessment of the estate of late Bhavarilal Bhandari. The facts giving rise to the dispute are state din paragraph 3 of the Appellate Controller's order. According to it, the deceased had made gifts of Rs. 10,000 in each one of the two previous years relevant to the assessment years 1969-70 and 1971-72 to his son Shri Surajmal. Likewise, the deceased had made gifts of Rs. 5,000 in each one of the two previous years relevant to the assessment years 1972-73 and 1974-75 to Smt.

Indira Kawar. These amounts were deposited by the do nees concerned in the deceased's business and in determining the principal value of the estate of the deceased, the Assistant Controller had included these amounts under Section 10 of the Estate Duty Act, 1953('the Act')- At the same time, the Assistant Controller disallowed the deduction of the amounts owing to them as debts otherwise entitled to such deduction under Section 44 of the Act, by resort to Section 46(1) of the Act. The accountable person preferred an appeal disputing the addition of the identical amount twice, one by resort to Sections 9 and 10of the Act and again by invoking the provisions of Section 46(1). The Appellate Controller accepted the assessee's contention and deleted the addition of 30,000. Aggrieved by his order, the department is in appeal. The contention raised in the grounds of appeal are that both the addition by resort to Sections 9 and 10 and disallowance under Section 46(1) could be made simultaneously by invoking the said provisions if the sections are found to be applicable.

2. We have heard the parties. We find absolutely no merit in the department's appeal. As pointed out by the learned Appellate Controller, the deeming provisions like Sections 9, 10 and 46 are aimed at evasion or avoidance of estate duty by the transactions contemplated by the said sections so as to nullify the effect of such transactions.

Thus, for instance, in Section 9, in the case of gift of cash which is not made bona fide two years or more before the death of the deceased shall be deemed to pass on the death, i.e., notwithstanding that he gifted amounts no longer belongs to the deceased and vest in the do nees, they are treated as part of the property passing on the death of the deceased. Similarly, under Section 10, a gifted property shall be deemed to pass to the extent that bona fide possession and enjoyment of it was not immediately assumed by the do nee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or other wise. applying these provisions, including Section 46(1), one has no see whether any amount gifted or otherwise disposed of by the deceased falls within any of these clauses, which to nullify the effect of the transaction by which ordinarily the property concerned cannot be regarded as the deceased's property. If it falls within the mischief of any of these provisions, then the property has to be regarded as belonging to the deceased and deemed to pass on his death. It may be that the alienated property may fall within the purview of only one of these sections aimed at ignoring the transaction of alienation or it may fall in one or more of such provisions. In such a case, what is sought to be included or disallowed under one or more of the provisions, is the value of that particular property and by its inclusion once in the property of the deceased deemed to pass on death, there is nothing further left for inclusion. The various deeming provisions may be applied to rope in the alienated property either alternatively or conjunctively, but once the property is included under any of the provisions, it cannot be again included by applying another provision which may be applicable to the same because after inclusion of the property once there is nothing left further for inclusion under any other alternative provision. In the circumstances, we reject the objection of the department. The appeal is dismissed.


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