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TMI Blog1990 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... is case for self as well as for the wife was Sardar Harbans Singh. The accountable person was paid a sum of Rs. 2,01,750 against the Insurance Policy from the Life Insurance Corporation of India. The father of the deceased Sardar Harbans Singh was the nominee under the said policy. The accountable person took a plea that deceased did not acquire any interest in the money paid after his death and, therefore, policy money does not pass on the death of the deceased u/s 5 of the Estate Duty Act. The Assistant Controller relying on Bharatkumar Manilal Dalal v. CED [1975] 99 ITR 179 (Guj.) held that sections 5 and 6 of the E.D. Act are applicable and, therefore, the amount received by the accountable person is includible in the estate of the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t important questions are arising out of the misc. application of the assessee and, therefore, vide their order dated 24-11-1988 they referred the following two questions for the consideration of the Larger Bench to the President through the zonal vice-president : 1. Whether the sentence in the penultimate para at page 791 of the decision rendered by the Hon'ble Supreme Court in 161 ITR page 768, constitutes the ratio or an obiter of the Hon'ble Supreme Court, as contended by the learned Departmental Representative or only constitutes an unnecessary or a casual observation which does not have to be credited even with the status of an obiter as contended by the learned advocate for the assessee? 2. In view of the answer on the above ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 178 (Guj.)v, CIT v. Purtabpore Co. Ltd. [1986] 159 ITR 362 (Cal.), CIT v. Hindustan Zinc Ltd.[1986] CTR (Raj.) 222 and Kil Kotagiri Tea coffee Estates Co. Ltd. v. ITAT [1988] 174 ITR 579 (Ker.) urged that even rectification is possible on the basis of the Hon'ble High Court decision. He further relied on R. Kuppuswamy Mudaliar Sons v. Board of Revenue [1980] 45 STC 152 (Mad.) M.V. Govindaraju Chetty v. CTO [1968] 22 STC 46 and AAC v. N. Kuppanna Gounder [1975] 35 STC 170 (Mad.). He further relying in J.M. Bhatia, AAC v J.M. shah [1985] 156 ITR 474 (SC) and CIT v. R.M Co. [1984] 148 ITR 353 (AP) urged that an order which is inconsistent with the provision of the subsequent amendment of law with retrospective effect, must be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that section 5 was not applicable but sections 6 and 15 of the E.D. Act were applicable. The Tribunal followed the decision of the Madras High Court and, accordingly, the matter was decided. 7. In the meantime, the High Court decision in M.Ct. Muthiah's case was taken up by the Hon'ble Supreme Court. It would be relevant to mention that against the decision of the Madras High Court, the accountable person as well as the department went in appeal before the Supreme Court. Civil Appeal No. 2086 of 1974 was filed by the accountable person, whereas, Civil Appeal No. 67 of 1975 was filed by the Revenue before the Supreme Court. Three questions were referred for the decision of the Hon'ble High Court in Madras case . They were --- " 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (J K). The first Appeal No. 2086 of 1974 is allowed and question No. 1 is answered in the negative." 9. Then the Supreme Court took up the appeal of the department in Civil Appeal No. 67 of 1975 and indicated that question No. 2 of the said appeal need not be answered. As there was an appeal by the department, they indicated that had it been necessary to answer this question we would have treated this as a separate estate from the other estate of the deceased and the value of this could not be aggregated. The department relying on this observation indicated that the view taken by the Madras High Court is correct. 10. Sri Satyanarayana, the counsel of the accountable person, has cited some of the decisions to show that the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal when the Tribunal decided the issue following the decision of the Madras High Court, because the decision of the Madras High Court had been considered not to be a good law. Therefore, the legal mistake was apparent from the record in view of the decision of the Supreme Court . Under the said circumstances, legal mistake committed by the Tribunal is a rectifiable mistake u/s 254 of the Act. The observation made by the Supreme Court in the penultimate paragraph at page 791 was in a different context. The Supreme Court was hearing the appeal of the accountable person as well as of the department together. The first question which was answered against the assessee was answered by the Supreme Court in favour of the accountable p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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