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Smt. Mangala G. Abhyankar Vs. First Assistant Controller of - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Judge
Reported in(1986)15ITD252(Mum.)
AppellantSmt. Mangala G. Abhyankar
RespondentFirst Assistant Controller of
Excerpt:
.....controller shall fix the price of the property according to the market price at the time of the deceased's death.thus, according to the main provision, what is material is the market value at the time of the deceased's death. however, in the cases which fall under the proviso market price at the time of the death of the deceased is not material. it is laid down in the proviso that where the value of the property has been depreciated by reason of the death of the deceased, the depreciation shall be taken into account in fixing the price. it is obvious that the depreciation would not take place at the very moment of the death of the deceased. it would take place after lapse of a reasonable period after the death of the deceased.consequently, when the death of the deceased is the cause.....
Judgment:
1. Shri G.M. Abhyankar died on 19-2-1981. His widow Smt. Mangala G.Abhyankar is the accountable person and she has filed this appeal against order dated 21-3-1983, passed by the Controller (Appeals).

2. The first ground relates to an amount of Rs. 52,500 being the amount of commission payable to the deceased on the date of his death. The assessee was managing director of Hico Products Ltd. He was entitled to commission from his employer under Clause 5(1)(6) of the agreement dated 31-7-1979. Clause 5(1)(c) and (b) read as follows : (1) In consideration of the performance of his duties, the company shall, during the continuance of this agreement pay to the managing director.

(b) Commission at the rate of 1 per cent on the annual net profits of the company computed in the manner referred to in Section 198 of the Companies Act, 1956 subject to a maximum of Rs. 45,000. . .

3. The commission payable to the deceased on the date of death was as follows :31-12-1980) 45,000Commission for the period from 1-1-1981 to 12-2-1981(date of death) 7,500 Total 52,500 4. The accountable person had included Rs. 45,000 in the return but had not included Rs. 7,500. According to her, the said amount was not due to the deceased on the date of death (19-2-1981) and that the said amount had become due on 31-12-1981, at the end of the accounting year and, as such, said amount did not represent property passing on death.

Reliance was placed on certain decisions which we shall consider presently in this order. The Assistant Controller rejected this plea and included the said amount of Rs. 7,500 in the property passing on death. Before the Controller (Appeals), the accountable person raised the plea that the whole amount of Rs. 52,500 was not includible because the accounts of the years 1980 and 1981 of the employer-company had been finalised after the death of the assessee and before such finalisation, the accountable person had no beneficial interest in the commission. This plea was not sustained by the Controller (Appeals), who held that commission became payable as soon as services had been rendered and that the fact that quantification took place subsequently was immaterial. The accountable person has raised the same contention now before us.

5. We have already reproduced items (a) and (b) of Clause 5(1) of the agreement of the deceased with the employer. It is significant that although salary payable is Rs. 90,000 per annum [vide item (a)], the accountable person did not raise any objection to inclusion of Rs. 7,500 being salary payable for the month of February 1981 and that amount was included in the return. It is only in respect of commission of Rs. 7,500 due for the period from 1-1-1981 to 19-2-1981 that objection was raised before the Assistant Controller while before the Controller (Appeals) objection extended also to Rs. 45,000 payable for the financial year 1980. The words of Clause 5(1) of the agreement are quite clear. The commission is payable for services rendered and calculation of commission payable is to be made at the rate of 1 per cent on annual net profits subject to maximum of Rs. 45,000. There is no clause in the agreement which states that the deceased would have no beneficial interest in the commission payable for services already rendered till the accounts of the employer-company were finalised. The deceased would acquire beneficial interest in the commission as soon as he rendered services although quantification would take place at subsequent date. As already stated, it is specifically mentioned in the agreement that commission was payable for the services rendered. We are unable to agree with the submission of the learned representative of the assessee that the amount in question was not liable to be included in the property passing on death.

6. The two decisions on which the learned representative for the assessee has relied are not of assistance. The first decision is CIT v.Birla Gwalior (P.) Ltd. [1973] 89 ITR 266 (SC). The ratio of that decision is that the commission receivable if given up prior to making up of accounts was not liable to be included in the income when no date had been fixed by agreement for payment of such commission. The second decision is CIT v. Mehar Singh Sampuran Singh Chawla [1973] 90 ITR 219 (Delhi). In that case it was held that the salary, commission and bonus which had been foregone before the end of the relevant accounting year did not constitute income of that year. The ratio of these two decisions is not applicable in the present case. The concept of accrual of income is different from the concept of beneficial interest in the property passing on death. The right to receive commission constitutes property in praesenti although the commission is to be quantified and to be actually received on a future date and this property would certainly pass on the death of the deceased and the value thereof would be liable to be included for calculating the estate duty. We, therefore, confirm the order of the Controller (Appeals) on this point.

7. The next point raised is that the Controller (Appeals) had erred in holding that the deceased's interest in the properties of an HUF (smaller) of which the deceased was the karta and coparcener, is, and extends to, whole of the properties of the said HUF rejecting the assessee's stand that only one-half of the value of the properties would be deemed to pass under Section 7 of the Estate Duty Act, 1953 ('the Act') or under any other provisions of the Act.

On the date of death, the smaller-HUF consisted of the deceased, his wife and his daughter. There was no son. The deceased was sole surviving coparcener. The wife and daughter had no right to demand partition. Consequently, the whole property would pass on his death. We are unable to agree with the submission of the learned representative for the assessee to the effect that only half of the said property would pass on the death of the deceased. The point in issue is covered against the assessee by the decision of the Allahabad High Court in CED v. Smt. Kalawati Devi [1980] 125 ITR 762, where it was held that the entire property passed on the death of the deceased when that property is received on partition from bigger-HUF by the deceased having no son but only wife and daughter. No decision taking any contrary view was brought to our notice. We, accordingly, reject this ground.

8. The third ground is that the learned Controller (Appeals) had further erred in holding that the deceased's one-half coparcenary share in the estate of an HUF (bigger) passes under Section 7 read with Section 39 of the Act. According to the accountable person, only one-fourth share in the estate of the HUF (bigger) would pass on the death of the deceased. This argument is based on the same argument on which the earlier had rested. That ground was that the wife of the assessee had half share in the property on the date of the death of the deceased. This contention cannot be accepted in view of the decision already referred to. Reliance is placed on behalf of the accountable person on the decision of the Calcutta High Court in Satyanarayan Sarafv. ACED [1978] 111 ITR 432. In that case, it was held that in order to ascertain the lineal descendants of the deceased under Section 34(1)(a) of the Act, a notional partition of the smaller-HUF was also contemplated between the son and son's son of the deceased. In such a partition, the son's wife would be entitled to the share equal to that of her son and that share of the son's wife was not liable to be taken into account for the purposes of aggregation under Section 34(1)(c).

The principle laid down in this decision would not be applicable in the present case. It is well settled that a wife cannot herself demand a partition but if a partition takes place between her husband and his son, she is entitled (except in South India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. In that decision, there was a son's son of the deceased and as such, it was held that the wife of the son would be entitled to a share and that share was not liable to be included under Section 34(1)(c). In the present case, the deceased had no son and as such, there was no question of his wife getting any share. The principle laid down in that decision would not be applicable in the present case where the deceased was sole surviving coparcener. This ground is, therefore, rejected.

9. The fourth ground is that the Controller (Appeals) had erred in holding that no deduction should be made towards an estimated charge by way of maintenance of the widow of the deceased, from the value of the properties of an HUF (bigger) as also properties of an HUF (smaller) of which the deceased was the karta and coparcener, whilst determining the, amount of share of the deceased in the properties of the said joint families under Section 7 read with Section 39.

On behalf of the accountable person reliance was placed on the decision in CED v. Dr. B. Kamalamma [1984] 148 ITR 434 (Mad.). In that case deduction for certain sum representing provision for the marriage of the daughter of the deceased was allowed from the principal value of the estate, on the ground that the obligation was enforceable against the ancestral property which the deceased has possessed. This principle laid down in that decision would not be applicable in the present case.

In our case, deduction is claimed towards estimated charge by way of maintenance of the widow of the deceased. What we have to see is whether there was any charge on the property of the deceased at the time of death of the deceased in respect of maintenance of his wife.

Under the Hindu law, the wife is entitled to be maintained by her husband whether he possessed any property or not. The maintenance of the wife by her husband is a matter of personal obligation arising from the existence of the relationship and quite independent of the possession by the husband of any property, ancestral or self-acquired.

The maintenance being a matter of personal obligation the wife has no claim for maintenance against her husband's property in the hands of a transferee from him. Her remedy is to obtain a decree of the civil court creating a formal charge on the property. If no such decree is obtained, there is no charge on the property. Consequently, no deduction is permissible from the value of the property of the HUF (smaller) of which the deceased was a sole surviving coparcener. On the death of the deceased his interest in the coparcenary property of an HUF (bigger) devolved on his widow and daughter. There is no question of claim of maintenance when she has inherited the property on the death of the deceased. The claim as laid down in the above ground appears to be misconceived and was rightly Rejected.

10. The Fifth ground raised is that the learned Controller (Appeals) erred in holding that for computing the principal value of the equity shares of Hico Products Ltd., no cognizance be taken of the fact that stock exchange quotations do not always furnish an infallible guide in the matter of valuation of shares and, besides, do not take into account the erosion of the value of the shares induced by the death of the deceased.

It was submitted lhat the deceased had a towering personality as far as the business of Hico Products Ltd. (of which he was managing director) was concerned. The tremendous progress made by the said company was entirely due to herculean efforts made by the deceased. The said company had acquired a particular status because of the reputation of the deceased. On the death of the deceased a sudden void was created and this resulted in serious erosion of the intrinsic worth of the shares of the said company. The value of the shares depreciated considerably by reason of the death of the deceased. Consequently, according to the learned representative for the assessee, the stock exchange quotation on the date of death of the deceased should not be taken as fair market value of the shares of the said company. The stock exchange quotation on that date, according to him, did not reflect the real value of those shares. This was proved by subsequent steep fall in the value of the shares. The submission, therefore, was that the value estimated by the Assistant Controller in respect of the shares of the said company held by the HUF (bigger) and the HUF (smaller) of the assessee was abnormally high and, as such, the said value should be revised.

11. The learned representative for the assessee filed stock exchange quotations of the price of the shares of the said company from 2-1-1981 to 31-3-1982. These quotations indicated that from 3-1-1981 to 19-2-1981, the fluctuation in the value of the shares was very small.

It ranged between Rs. 36 and Rs. 38 per share. However, from 22-4-1981, there was continuous fall in the price of the shares and ultimately on 31-3-1982, the price was Rs. 23 per share. He filed quotations of price of various other limited companies to indicate that there was no such fluctuation in their prices. It was submitted that subsequent fall in the price of Hico Products Ltd., was due to the death of the deceased and, as such, this factor should have been taken into account in estimating the value of the shares of the deceased. Similar contention was raised before the Controller (Appeals). He negatived this contention and observed that the Act did not concern itself with future value of the shares but only the value as on the date of death of the deceased and that value is reflected in stock exchange quotation as on the date of the death of the deceased. He further observed that ho other evidence was produced to indicate that the actual sale price at the time of death of the deceased was different from the stock exchange quotation. He, therefore, negatived the contention that the shares should not be valued at the price quoted on stock exchange on the date of death of the deceased.

12. After hearing the parties, we are of the opinion that the learned Controller (Appeals) has ignored the provisions of proviso to Section 36(2) of the Act. In the main provision in Section 36(2), it is mentioned that the Controller shall fix the price of the property according to the market price at the time of the deceased's death.

Thus, according to the main provision, what is material is the market value at the time of the deceased's death. However, in the cases which fall under the proviso market price at the time of the death of the deceased is not material. It is laid down in the proviso that where the value of the property has been depreciated by reason of the death of the deceased, the depreciation shall be taken into account in fixing the price. It is obvious that the depreciation would not take place at the very moment of the death of the deceased. It would take place after lapse of a reasonable period after the death of the deceased.

Consequently, when the death of the deceased is the cause of depreciation in the value of the property, it is the depreciated price which shall be the "principal value of the property and not the market price at the time of the deceased's death. When the deceased is doing a small business and if depreciation takes place by reason of his death, depreciation will be discernible within a short period. However, when the deceased is the managing director of a big company, and if depreciation takes place by reason of his death, that depreciation in value would be visible only after a lapse of a bit longer time. A period of about two to four months would be considered as a reasonable period in which the effect of death of the deceased on the value of the property would be visible. In the present case, the Controller (Appeals) was in error in rejecting the plea of the accountable person to take into account the erosion in the intrinsic value of the shares which had taken place by reason of death of the deceased. This plea requires consideration and if, on considering the materials the conclusion was that the value of the property had in fact depreciated by reason of death of the deceased, the said depreciation should be taken into account in fixing the price. In the present case, this aspect has not been considered at all. In the circumstances, we have no option but to restore the matter to the Controller (Appeals). We restore the matter to him with direction that he would give opportunity to both the parties to bring on record the necessary material for determining the question whether the value of the shares of Hico Products Ltd., had depreciated by reason of the death of the deceased.

If it is proved to his satisfaction that the value had so depreciated that depreciation shall be taken into account and the price shall be estimated accordingly.


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