9911796707
TMI Blog1967 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... fe, on June 16, 1916, Bhupendra executed a deed of gift, in the Bengali language, in favour of his eldest son, Panchanan Mukhopadhyaya. The English translation of the material portion of the deed reads as follows: "You are my eldest son and by virtue of succession after my death you are entitled to have a share of all those movable and immovable properties in which I have right, title, and interest and possession. With a view to preventing troubles, quarrels and litigations and also for avoiding various difficulties amongst my sons regarding settlement and preservation of the joint properties after my death, before demarcating to each of my heirs all the movable and immovable properties separately through a will or by deeds of settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchanan Mukherjee, were assessed, under the Estate Duty Act, 1953, as accountable persons. The Assistant Controller of Estate Duty included the value of the properties covered by the deed of gift, referred to above, in the principal value of the estate of the deceased, proceeding on the basis of section 10 of the Estate Duty Act. The value of the properties covered by the deed of gift was taken to be Rs. 2,00,000. Sitanath, thereupon, filed an appeal before the Central Board of Revenue, to which the appeal lay under the law as it then stood. He objected to the inclusion of the value of the properties covered by the deed of gift in the principal value of the estate of the deceased, inter alia, on the following grounds : (a) That there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, and on a proper construction of the deed of gift, dated the 16th June, 1916, the properties covered by the said deed have been rightly included in the estate on the deceased as property passing on his death under section 5 or alternatively, as property deemed to pass on his death under section 10 of the Estate Duty Act, 1953 ? " At this stage, it is necessary for us to remind ourselves of the language of section 10 of the Estate Duty Act which reads : " Property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of, any benefit to him b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that both these conditions are cumulative. Unless each of these conditions is satisfied, the property would be liable to estate duty under section 10 of the Act. This view is borne out by the decision of the Court of Appeal in Attorney-General v. Earl Grey, with regard to an analogous provision under section 38(2) of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889. The second part of the section has two limbs : the deceased must be entirely excluded, (i) from the property, and (ii) from any benefit by contract or otherwise. It was argued for the appellant that the expression ' by contract or otherwise ' should be construed ejusdem generis and reference was made to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof taken under gift made to the spouse, son, daughter, brother or sister, shall not be deemed to pass on the donor's death by reason only of the residence therein of the donor except where a right of residence therein was reserved or secured directly or indirectly to the donor under the relevant disposition or under any collateral disposition. The Supreme Court observed that the aforesaid amendment had no retrospective effect and would not in any way control the statement of law made in the aforesaid judgment. Keeping in view the law as hereinbefore summarised, we have now to examine the arguments advanced on behalf of the assessee. It was contended before us, in the first place, that there was a gift made by the deceased in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated properties shall remain in the possession of the donor and the donor shall enjoy the usufruct of the said property. He may, however, help the donee according to his discretion. (b) The donee was given the liberty to go into possession of the house, which was the subject-matter of the gift, only occasionally according to his needs and even that with the permission of the donor. By the deed of gift it was expressly provided that complete possession and right in the gifted property will vest in the donee only after the death of the donor. As we read this deed, it appears to us that there was no intention of giving anything to the donee in praesenti. Everything was reserved for the future, both possession and enjoyment. The donor hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
