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TMI Blog1990 (1) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... Begum and Md. Roofia Nazma Begum are the two daughters of late Sri Md. Rahman. In the property left behind by the deceased late Md. Rahman, admittedly, his widow had got 1/8th share, each of his sons got 14/72th share and each of his daughters 7/48th share. 3. Though the accountable person admitted the total value of the movable and immovable properties of the deceased at Rs. 11,13,936, the value of the dutiable estate was returned only at Rs. 7,89,037. The value of the shares of the two daughters of late Shri Md. Rahman in the total value of the estate given at Rs. 3,24,898 according to the accountable person does not pass on the death of the deceased. The first daughter Smt. Md. Zareena Begum was married on 25-11-1984, i.e, 4 days before the death of the deceased. The second daughter Md. Roofia Nazma Begum remained unmarried at the time of the death of her father. The following reasons were given in the account filed by the accountable person for not including the value of the share of the two daughters inherited in their father's estate : " The deceased got 3 sons. Thus each son got 14/72th share. The deceased got two daughters. Thus each got 7/48th share. The marriage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 80,000 is allowable as deduction towards the marriage expenses of the two unmarried daughters. Further the learned Appellate Controller erroneously understood the refusal to consider Rs. 1,24,040 as rebate on sons share as a refusal to give deduction, in the computation of the value of the estate of the deceased, and ultimately held in his impugned order that out of Rs. 1,24,040, Rs. 30,000 should be allowed as a deduction towards the maintenance allowance of the minor son who is her third son. 6. The only two grounds in the departmental appeal are directed towards challenging the allowance of Rs. 80,000 on account of marriage expenses of the two daughters and Rs. 30,000 towards maintenance of minor son (3rd son) of the deceased and the direction to allow them as deductions. The first two grounds in the appeal filed by the accountable person are directed against the short deduction of Rs. 80,000 instead of Rs. 3,24,898 as also Rs. 30,000 instead of Rs. 1,24,040. 7. We have heard Shri M.K. Rao, the learned departmental representative and Smt. Prabha Jain for Sri M.J. Swamy, learned advocate for the accountable person. The learned departmental representative had filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to providing marriage expenses of daughters marriage, if any, exists under Muslim Law, it is only the personal liability of the father and it does not form an automatic charge on the property left by him after his death. In this appeal it is nobody's case that a claim for maintenance was made against the deceased during his lifetime on behalf of his unmarried daughter or any liability towards that obligation was undertaken by the deceased during his lifetime. In our considered opinion, an heir of a Muslim has to look only to the share inherited by him or her in the property of the deceased for satisfying his or her maintenance claim so long as in pursuance of such claim no charge over any property of the deceased was created in a suit filed and decreed against the deceased. Mere claim for maintenance unless it is quantified under decree or such liability is undertaken by the deceased to be a debt cannot be considered either as a debt or an encumbrance within the meaning of section 44 of the Estate Duty Act. A liability arises as soon as the death of the deceased occurs and it does not depend filing of account. U/s. 74 of the Estate Duty Act, estate duty payable forms fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty shall be levied thereon at the rate or rates applicable in respect of the principal value thereof. " A reading of the above provision would clearly show that the said provision is applicable to Hindus only. A share inherited from the father on his death in the case of Mahomedans cannot be equated to an interest in the joint family property in the case of Hindus. As regards the claim of maintenance for the second daughter, we feel that the decision of the A.P. High Court in CED v. Smt. P. Leelavathamma [1978] 112 ITR 739 clearly applies. In that case also sole surviving coparcener of a Hindu undivided family dies leaving behind his mother, his widow and a daughter. The question which came up for decision before the High Court was whether the wife is entitled to the right of maintenance after the death of her husband, she having inherited a part of his estate. The A.P. High Court held that she is not entitled to any separate maintenance apart from her share. At 740 of the reported decision, the ratio of the A.P. High Court as per the head note is as follows : " Held, (i) that the wife, being a heir of the deceased under section 8 of the Hindu Sucession Act, is not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the father with regard to his first daughter. Even with regard to the second daughter her mere claim for maintenance would not be taken to be a debt owed by the deceased or as an encumbrance on the estate of the deceased, she not having filed any suit or obtained a decree creating a charge on a part of the deceased's property. We hold that the second daughter cannot have the right of inheritance as well as the right of maintenance. She has to look to her inherited share only for satisfying her right of maintenance if any. For these reasons, we are of the firm view and we hold that either Rs. 3,24,898 or Rs. 80,000 granted by the learned Appellate Controller cannot be deducted from out of the total estate of the deceased either constituting as debt or encumbrance u/s. 44 of the Estate Duty Act. 9. We hold that the shares obtained by the sons of the deceased on his death constitute part of the estate which passed on the death of the deceased under section 5 of the E.D. Act. We also hold that under section 34(1)(c) the shares of the sons in their father's estate cannot be aggregated and the duty rebate cannot be obtained under section 34(1)(c) since they are not Hindus and since sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total interest of Rs. 35,030 only an amount of Rs. 17,684 is legally exigible and the extra amount of Rs. 17,646 cannot be levied against the accountable person or against the estate of the deceased towards late filing of the E.D. account. Learned counsel for the accountable person submitted that on 30-12-1985 further time was asked for seeking further extension of time for filing the return. However, the Asst. Controller of Estate Duty did not grant time by passing any specific order or intimating the same to the accountable person. He merely intimated posting the case on 21-4-1986 on which date the accountable person filed her estate duty account. Section 53(3) of the E.D. Act is as follows : " Every person accountable for estate duty under this section shall, within six months of the death of the deceased, deliver to the Controller an account in the prescribed form and verified in the prescribed manner of all the properties in respect of which estate duty is payable : Provided that the Controller may extend the period of six months aforesaid on such terms which may include payment of interest as may be prescribed. " Rule 42 of the Estate Duty Rules, 1953 prescribes the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Act has only those powers which are conferred on it by the statute. It cannot assume powers which Parliament or the Legislature has not given to it. In the Income-tax Act, Parliament specifically provided in sub-section (8) of section 139 for charging of interest for belated returns. Under this Act, interest is automatic irrespective of the assessee's applying for time or of the Income-tax Officer allowing time. Sub-section (3) of section 53 provides that every person accountable for estate duty shall, within six months of the death of the deceased deliver to the Controller an account in the prescribed form and verified in the prescribed manner of all the properties in respect of which estate duty is payable. This period of six months can, however, be extended under the proviso appended to it. The proviso confers power on the Controller to extend the period of six months on such terms which may include payment of interest. Under this provision, therefore, if extension is not applied for under sub-section (3) of section 53, it is mandatory to file the return within six months of the death of the deceased. The accountable person, however, can apply for extension which can be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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