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TMI Blog1979 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... eased. The sum of Rs. 10,000 stood, therefore, as a debt due to the donee Sambandan. The Asstt. Controller disallowed this debt and made an addition of Rs. 10,000. In the assessment order it is stated that "the sum of Rs. 10,000 is treated as property passing under s. 46(2) of the Act." On appeal, the Appl. Controller deleted the sum of Rs. 10,000 on the ground that there is no need to made a double addition. It is against this order of the Appl. Controller that the present departmental appeal is laid before us. 2. The Appl. Controller and the Asstt. Controller referred to "passing" under s. 46(2) of the ED Act with regard to this sum of Rs. 10,000. The ground of appeal raised by the Department, ground No. 2, refers to the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being such property as aforesaid, but given by any person who was at any time entitled to, or amongst whose resources there was at any time included, any property derived from the deceased: Provided that if, where the whole or part of the consideration given consisted of such consideration as is mentioned in cl. (b) of this sub-s., it is proved to the satisfaction of the controller that the value of the consideration give, or of that part thereof as the case may be, exceeded that which could have been rendered available by application of all the property derived from the deceased other than such (if any) of that property as is included in the consideration given or as to which the like facts are proved in relation to the giving of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a decision of the Supreme Court in Jain Brothers vs. Union of India (1970), 77 ITR 107 (SC) and (ii) the difference between the provisions of the English and the Indian Acts. Since there are material facts and circumstances not considered by the earlier Bench of the Tribunal, we have to look into the case afresh. 8. In the present case the assessee gifted a sum of Rs. 10,000 the same amount having been retained in the business the assessee became a debtor to the donee. The consideration therefore, for the debt outstanding is clearly the property derived from the deceased namely, the sum of Rs. 10,000 gifted. The provisions of s. 46(1)(a) clearly apply to the facts. The only question is whether the same sum of Rs. 10,000 is included twi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). The Constitution does not contain any prohibition against double taxation." There can be double taxation where there is specific provision for the same. Even if the same property is under statutory provisions included twice, e.g. one passing and another as deemed to pass if the statute permits the double inclusion there is no prohibition against it. The position is much worse when the properties on which the criteria of inclusion are different but only the amounts are the same. s. 34(5) which runs as under: "34(5) For the purpose of this section, no property shall be aggregated more than once nor shall estate duty in respect thereof be levied more than once on the same death" provides against double taxation in certain circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law and on fundamental concepts and on broad general principles, decisions of Courts in England, can, therefore, be useful and of considerable guidance if utilised with due care and caution. The rule of construction relating to provisions of enactments in pari materia is one of great convenience and aid from outside may legitimately be derived when any doubtful point of interpretation of any provision has to be solved. But reference to it simply on the ground of similarity has to be avoided." The above is supported also by the decision in Mahendra Rambhai Patel vs. CED (1965) 55 ITR (ED) 1, p 15. But as stated in CIT Bengal vs. Mahaliram Ramjidas (1940) ITR 442 (PC) and in Kamcherla Keshav Rao vs. Controller of Estate Duty (1969) 74 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowable-under the ED Act. If the deceased had paid off the amount gifted certainly he would claim the debt. It is this very mischief sought to be perpetrated in this case s. 46(1)(a) or (b) seeks to contend with. Even under the English Act there is no judicial decisions which prohibits or is against the same inclusion. Green's Estate Duty only speaks of a practice in certain cases, whereas Diamond's Death duty not only does not refer to the practice but in fact suggests a liberal approach only. Even from the point of equity we do not see how when a person who seeks to give a gift wants to enjoy the fruits thereof by retaining the property with himself should be given not a single advantage, namely allowance of gift-tax on the estate duty cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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