Skip to content


Smt. Urmila Vaid Vs. Second Assistant Controller of - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Judge
Reported in(1984)9ITD705(Mum.)
AppellantSmt. Urmila Vaid
RespondentSecond Assistant Controller of
Excerpt:
.....sum of rs. 22,630 under section 9 in respect of relinquishment of the share by the deceased in the partial partition of the huf, which was treated by him as a disposition in the nature of a gift, as discussed in the assessment order. the assistant controller found that the deceased was a member of girdharilal shamlal, huf, that there was a partial partition of the assets of the huf on 3-11-1978 between girdharilal and his minor son, ashish, and that in this partition the deceased was not allotted any share. the assistant controller, therefore, concluded that this was a case of unequal partition and that in the light of the supreme court decision in the case of ced v. kantilal trikamlal [1976] 105 itr 92, it amounted to a disposition dutiable under section 9 read with section 27. it was.....
Judgment:
1. The dispute in this estate duty appeal is about the addition of Rs. 22,630 as property deemed to pass on the death of the deceased, Smt.

Urmila Vaid, under Section 9 read with Section 27 of the Estate Duty Act, 1953 ('the Act').

2. This appeal arises out of the estate duty assessment of late Smt.

Urmila Vaid, who died on 28-7-1979. While completing the estate duty assessment of her estate, the Assistant Controller added a sum of Rs. 22,630 under Section 9 in respect of relinquishment of the share by the deceased in the partial partition of the HUF, which was treated by him as a disposition in the nature of a gift, as discussed in the assessment order. The Assistant Controller found that the deceased was a member of Girdharilal Shamlal, HUF, that there was a partial partition of the assets of the HUF on 3-11-1978 between Girdharilal and his minor son, Ashish, and that in this partition the deceased was not allotted any share. The Assistant Controller, therefore, concluded that this was a case of unequal partition and that in the light of the Supreme Court decision in the case of CED v. Kantilal Trikamlal [1976] 105 ITR 92, it amounted to a disposition dutiable under Section 9 read with Section 27. It was contended on behalf of the accountable person that the deceased was only a member and not a coparcener of the HUF, that her rights in the family were not impaired in any way as she continued to be a member of the HUF, even after the partial partition and that finally without prejudice to the above contentions, the relinquishment of share in the partitioned assets would not be one-third but only one-twelfth, as the assessee was a member of the smaller HUF with her husband to whom half share was allotted in the partial partition. The Assistant Controller did not accept any of these contentions. He relied on the decision of the Bombay High Court in Pranjivandas Shivalal v. Icharam Vijbhukhandas AIR 1915 Bom. 255 to hold that it was a case of unequal partition, that according to the Bombay High Court, the partition should be according to the condition of the family as on the date of partition and that in a subsequent partition, the man who received less than the share of assets would not be entitled to compensation (equalisation) at the time of subsequent partition. He, therefore, held that what the deceased had foregone in the partial partition was gone for ever. Accordingly, he included the amount of Rs. 22,630 as the value of the property gifted by the deceased under Section 27 read with Section 9.

3. When the matter went before the Appellate Controller, he agreed with the conclusions of the Assistant Controller by following the decision of the Supreme Court in the case of Kantilal Trikamlal (supra). The appellant feels aggrieved by this order and has come up in appeal to the Tribunal.

4. Shri V.P. Mehta, the learned Counsel for the accountable person, reiterated the submissions that, were urged before the departmental authorities and submitted that there was no gift by the deceased which would attract duty under Section 27 read with Section 9. He placed before us a copy of the memorandum of partial partition dated 7-11-1978 and pointed out that it was only a case of partial partition of the movable assets specified therein, that in respect of other properties, the HUF continued to be joint and undivided, that the deceased also had a share in the 50 per cent share that was allotted to her husband as the karta of the smaller HUF consisting of himself, his wife (i.e., the deceased) and their unmarried daughter. He further invited our attention to Clause 6 of this memorandum of partial partition to show that the deceased had agreed not to receive any share out of the assets that was the subject-matter of the partial partition in consideration of her husband having agreed to continue to provide for her maintenance. The learned Counsel argued that this would be sufficient consideration in money's worth for the disposition contemplated in Section 27 and that, therefore, the same could not be included as a gift under Section 27 read with Section 9. He alternatively argued that at any rate only the one-twelfth share of the properties that were the subject-matter of the partial partition could be deemed to have passed under Section 9 read with Section 27.

5. On behalf of the revenue, reliance was placed on the decision of the Supreme Court in Kantilal Trikamlars case (supra), and also on the decision of the Allahabad High Court in the case of CED v. Devi Prasad [1983] 141 ITR 925. It was contended that the addition was rightly made and that the same should be upheld.6. We have considered the submissions urged on both sides in the light of the materials placed before us. The memorandum of partial partition dated 7-11-1978 shows that it was a case of partial partition of certain movable assets in the shape of company shares and cash of Rs. 2,100. These assets were divided equally between Shri Girdharilal Shamlal, the karta of the family and his minor son, Master Ashish. The shares allotted to Shri Girdharilal Shamlal is declared as for the benefit of his smaller HUF consisting of himself, his wife, Smt. Urmila Vaid (the deceased in the present appeal) and their unmarried daughter (Kum. Rita). The memorandum further states that all other assets of the family belonged to the larger HUF and continued to be joint and undivided and remained the property in the said HUF. In Clause 6 of this memorandum, it is stated as follows : 6. That the party of the third party voluntarily agreed not to receive any share out of the said assets in consideration of the party of the first part having agreed to continue to provide for her maintenance.

This memorandum of partial partition is signed by Shri Girdharilal Shamlal and also by Smt. Urmila Vaid.

7. From the above facts, it is clear that this is a case of partial partition of some of the movable assets of the HUF, and not a case of complete partition of all the assets of the HUF by metes and bounds. We are, therefore, of the view that the two decisions relied on by the revenue would not be applicable to the facts of the present case. It would be noticed from the facts discussed in the two decisions in Kantilal Trikamlal's case (supra) and also in the case of Devi Prasad (supra), before the Allahabad High Court, that they were cases of complete partition of all the assets between the coparceners and not a case of partial partition of some of the assets only as in the present case.

8. However, even if we assume for the sake of argument, on the basis of the recitals in the memorandum of partial partition that there was a disposition made by the deceased in favour of her relatives, it cannot be stated that such a disposition was without full consideration. We have already quoted Clause 6 of the memorandum of partial partition, which shows that the deceased agreed not to receive any share out of the assets, which were the subject-matter of the partial partition in consideration of her husband, who is the karta of the HUF, agreeing to continue to provide for her maintenance. Thus, it would be noticed that the deceased had secured her right to maintenance by means of this disposition. The value of this right to maintenance is certainly sufficient consideration in money or money's worth for the own use or benefit of the deceased In fact, the departmental authorities have ignored this clause while construing the memorandum of partial partition. If the right of the deceased to maintenance is taken into account, it would be full consideration in money's worth for the disposition made by her as contemplated in Section 27(1)(a). The value of the alleged gift included in her estate is Rs. 22,630 only. This is stated to be the value of her one-third share in the assets, which she is alleged to have foregone. At the same time, it would be noticed that the net principal value of the estate of the deceased as determined by the Assistant Controller is Rs. 6,91,282. Keeping this in mind, as indicating the status and family background of the deceased, the value of her right of maintenance secured by her in Clause 6 of the memorandum of partial partition would be equal to, if not more than, the value of the one-third share alleged to have been foregone by her.

In this view of the matter, we have to hold that the disposition, if any, made by the deceased under the memorandum of partial partition dated 7-11-1978 is a disposition made by her for full consideration in money's worth for her own use and benefit which is excluded by Section 27(1)(a) and that, therefore, it could net be construed as a 'gift' within the meaning of Section 27 for the purpose of the Act.

Consequently, no portion of this amount can be included under Section 9 as property deemed to pass on the death of the deceased. In this view, we delete the addition of Rs. 22,630 made to the estate of the deceased.

9. The decision of the Bombay High Court in Pranjivandas Shivalal's case (supra), relied on by the Assistant Controller, seems to support the case of the accountable person rather than the revenue. In that case, a joint Hindu family consisted of three branches. A member of one of the branches separated having taken his share, which was one-twelfth of the property, the others remaining joint. Later on the family separated. The question arose, whether the branch from which a member had already separated was entitled to a full one-third share of one-third minus one-twelfth. It was held by the Bombay High Court that under the Hindu law, the partition should be made rebus sic stantibus as on the date of suit and consequently, the branch was entitled to a full one-third share. We are unable to see how this decision supports the conclusion of the revenue in the present case. On the contrary, it seems to lend support to the contention of the accountable person that the deceased Smt. Urmila Vaid's right to an equal share in the HUF properties in a final partition was in no way impaired, which means that there was no disposition made by the deceased that could be treated as a gift under Section 27.

10. Even otherwise, we find considerable force in the alternative submission made on behalf of the accountable person, viz., that the share of the deceased that could be included under Section 27 read with Section 9 should be one-twelfth only and not one-third of the total assets divided in the partial partition. This is clear from the fact that the half share allotted to the karta, Shri Girdharilal Shamlal was taken by him as the karta of the smaller HUF, consisting of himself, his wife (the deceased) and his unmarried daughter. Therefore, the deceased had a 50 per cent share in the properties allotted to her husband in the event of a partition taking place in the smaller HUF.Therefore, only the difference between her one-third share, which is alleged to be the share due to her, according to the department, and the one-fourth share, which she has in this smaller HUF, could be taken as the subject-matter of the alleged disposition contemplated in Section 27. If at all any value is to be added on this account, only the value of one-twelfth share could be included in the estate of the deceased. Since, however, we have accepted the main contention of the accountable person, it is not necessary to pursue this line of enquiry any further.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //