Per Shri P. K. Mehta, Accountant Member - This is an estate duty appeal filed by the A. P. of deceased Shri P. N. Beri, who died on 31-5-1973.
Shri J. K. Beri, the son of the deceased, separated from his HUF headed by his father Shri P. N. Beri on 31-3-1966 and after his separation the HUF consisted of Shri P. N. Beri and his wife till the time of death of Shri P. N. Beri, The A. P. Claimed that the ancestral assets in the hands of Shri P. N. Beri belonged to his HUF consisting of himself and his wife and, therefore, he had only one-half share in those assets and it is that one-half share which could be said to pass on his death for estate duty purposes. The Assistant Controller has considered this matter under a heading Status claimed HUF but taken as individual. He rejected the claim of the A. P. by observing that the wife cannot in any way claim partition of the property and husband was fully competent to dispose of the property, there being no other coparcener. He in this manner rejected the claim of HUF and held The status will be taken as individual instead of HUF. This phraseology in the context of status in the estate duty assessment proceedings appears to be inappropriate. But what the Assistant Controller meant thereby was that the entire assets in the hands of the deceased of his HUF passed on his death and their value was liable to estate duty. Before the Appellate Controller, the counsel of the A. P., inter alia, referred to two decisions of the Benches of the Tribunal, namely, Bench of Jaipur and Chandigarh Bench in his favour. The Assistant Controller, who was present before the Appellate Controller cited and relied upon a decision dated 27-2-1982 of Amritsar Bench of the Tribunal in the case of Smt. Asha Rani A. P.of shri Telu Ram v. ACED [ED Appeal No. 17 (Asr.) of 1980] wherein it was held that a sole surviving coparcener was fully competent to dispose of the whole of the HUF property before his death and in view of section 6 of the Estate Duty Act. 1953 (the Act), the entire HUF property would be deemed to pass on his death. The Appellate Controller observed that there were conflicting decisions on the point at issue but he preferred to follow the decision of Amritsar Bench of the Tribunal and decided the issue against the A. P. The A. P. has come in further appeal to the Tribunal.
2. Shri N. K. Sud, the counsel of the A. P. relied on the two decisions of the Tribunal, namely, Jaipur Bench in the case of Radheyshyam v.ACED and of the Allahabad Bench in the case of Smt. S. Harish Chandra v. ACED in his favour and filed the copies of those two orders. Shri Sud also submitted that in view of conflict of decision amongst the Benches of the Tribunal the issue may be referred to a Special Bench.
The revenue, on the other hand, relied on the decision of the Amritsar Bench in the case of Smt. Asha Rani (supra) and filed a relevant extract from it. Apart from that decision, the revenue also cited two decisions of the High Court - one of the Punjab High Court at Chandigarh in Parshotam Dass v. CED  62 ITR 449 and the other of the Allahabad High Court in Vithal Das v. CED  85 ITR 432. It was submitted by the departmental representative that in view of the authority of the Punjab High Court in favour of the revenue the same should be followed and there was no need for constitution of a Special Bench.
3. We have given careful thought to the submissions of both the sides.
It is true that there is conflict of opinion between Amritsar bench on the one side and Jaipur and Allahabad Benches of the Tribunal on the other side. But it is worth pointing out that whereas the Amritsar Bench of the Tribunal has considered the question of taxability under section 6, the Allahabad Bench has considered the question under section 7 of the Act and without considering the applicability of section 6. It is also interesting to note that the attention of the Allahabad Bench was not drawn to the decision of the Allahabad High Court in Vithal Dass case (supra) where in the view in favour of revenue was taken under section 7 itself. In. the case decided by the Jaipur Bench neither the Punjab High Court authority nor the Allahabad High Court authority was cited. However, so far as this Bench is concern, not only the earlier decision of its in the case of Smt. Asha Rani (supra) is in favour of the revenue but there is also an authority of the Punjab High Court in Parshotam Dasss case (supra) which supports the revenue. The existence of the authority of our own High Court eliminates the need for referring the matter to a Special Bench of the Tribunal. It may also be stated that Shri Sud, the counsel of the A. P.did not cite any High Court authority.
4. We may now refer to the position obtaining in the case before us.
The Assistant Controller has mentioned in his order the fact that the husband was fully competent to dispose of the property, there being no other coparcener. He has not mentioned section 6 but his observation will relate to that section. Further, so far as the Appellate Controller is concerned, he has followed decision of the Amritsar Bench of the Tribunal, which is clearly based on section 6. We quote the relevant paragraphs 6 and 7 from the order of the Tribunal in the case of Smt. Asha Rani (supra) : "6. The next ground is that the Assistant Controller should have taken only one-half value of the property belonging to the HUF of which the deceased was the sole surviving coparcener. Only other member of the family was his wife. The claim of the assessee had been rejected by the lower authorities on the ground that being a sole surviving coparcener he was fully competent to dispose of this property on the date of his death. It was, therefore, held that whole of the property passed under section 6 of Estate Duty Act. The Controller of Estate Duty (Appeals) held that section or section 39 will have no application in the case of surviving coparcener and the question of applying provision of the Hindu Succession Act could not arise before the death of the deceased.
The learned counsel for the assessee has submitted that once the property belonged to the HUF section 39 could be applied. reliance has been placed on the various provisions of the Hindu Succession Act.
7. Having considered the facts of the case, we are of the view that the Controller of Estate Duty (Appeals) was justified in holding that in his capacity as a sole surviving coparcener the deceased was fully competent to dispose of the whole of the property prior to his death.
In view of this section 6 of the Estate Duty Act was clearly applicable. Reliance by the assessee on the various provisions of the Hindu succession Act is of no avail. As that Act makes provisions for succession and the question of giving any part of the property could arise either as a result of the partition or on death. For our purpose it is sufficient to find that the deceased had full capacity to dispose of property and this is borne by the observations in the Mullas commentary on Hindu Law. The order of the Controller of Estate Duty (Appeals) is, therefore, upheld." We find ourselves in respectful agreement with the view taken by the Amritsar Bench in the case of Smt. Asha Rani and are of the opinion that under section 6 entire HUF assets of the deceased shall be deemed to pass on his death as at the time of his death he was competent to dispose of those. The deceased was the only male coparcener or what is losely called sole surviving coparcener holding the ancestral properties which remained with him on the separation of his only son from him in March 1966. The right of sole surviving coparcener in respect of alienation of ancestral property is considered in article 257 in Mullas Treatise on Hindu Law, 15th edition. We quote clause (1) of article 257 : "(1) A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten." (p.
345) Again we may refer to the famous decision of the Privy Council in Attorney-General of Ceylon v. Ar. Arunachalam Chettiar  34 ITR (E. D.) 20 which was followed by the Supreme Court in the case of Gowli Buddanna v. CIT  60 ITR 293. At pages 301 and 302 the Supreme Court has given certain extracts of the Privy Councils decision and the Privy Council assumed that the powers of alienation of a sole surviving coparcener were unassailable, which he possessed like an owner. The Supreme Court has accepted the position that the sole surviving coparcener possessed rights which an owner of property might possess.
5. We have already referred to the Punjab High Court decision in the case of Parshotam Dass (Appeals) which goes in favour of the revenue.
There also there is no specific reference to section 6 but this can be clearly gathered from the question, which the Central Board of Revenue referred to the High Court for its opinion and we quote the question, which is given as under : "Whether, on the facts and in the circumstances of the case, the Board was correct in holding that the entire property included in the estate of the deceased passed on his death as property which the deceased at the time of his death was competent to dispose of ?" The High Court has given the answer in the affirmative to this question. The reasoning may specifically appear to be different but the conclusion will obviously be fit under section 6. We are bound to follow this authority.
6. In the light of the above discussion, we reject the appeal of the A.P. and hold that the entire assets of the HUF of the deceased were deemed to pass on his death under section 6 of the Estate Duty Act.