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TMI Blog1969 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... the court was delivered by SANKAR PRASAD MITRA J.-This is a reference under section 64(1) of Estate Duty Act, 1953. On 1st May, 1955, one Probodh Chandra Ray executed a deed of trust in which he was referred to as a settlor. There were two trustees under this deed, viz., Usharanjan Ghosh and Sunil Roy, the only son of the settlor. The subject-matter of the trust was premises No. 38, Southern Avenue, Calcutta, where the settlor used to reside. The trustees were directed to pay the rates and taxes and out of the balance of the income of the property they were to pay in any proportion whatsoever to Smt. Jotirmoyee Ray, the settlor's wife, Sunil Roy, the settlor's son, Uma Mitra, the settlor's daughter, any children of Sunil Roy and any chil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the change of ownership. The trustees under the deed of the 1st May, 1955, applied on the 6th September, 1955, to the Municipal Corporation for mutation of ownership. The trustees were also assessed to income-tax on income from premises No. 38, Southern Avenue. A little over four years later, however, on the 8th May, 1959, the settlor executed a document in which he stated that the indenture dated 1st May, 1955, created what would appear to be a deed of trust and that he executed the deed " himself knowing and also the persons in whose favour the deed was so executed knowing it to be an out and out benami transaction with the view of avoiding payment of estate duty. " He stated in this document of the 8th May, 1959, that he ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot escape the levy of the estate duty. These documents may have created complications for the assessee at the initial stages of this case before the tax authorities but, in view of the findings they have arrived at, this court, dealing with a reference under section 64(1) of the Estate Duty Act, 1953, cannot be invited to attach any importance to them. In paragraph 11 at page 43 of this order the Appellate Controller of Estate Duty, Eastern Zone, Calcutta, has stated : " In my opinion the document dated 8th May, 1959, is only an evidence of the anger displayed by the father as a result of the various family quarrels which culminated in the filing of a criminal complaint by his, son, Sunil Roy, on 4th July, 1958, against the husband of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the deceased moved out of this premises soon after the execution of the document ; but subsequently came into it, at any rate, a few days before his death. " These observations of the Appellate Controller and the Tribunal have finally set at rest the controversy that was sought to be raised before us on the basis of the two documents of the 8th May, 1959. In the course of the estate duty proceedings, however, the Assistant Controller of Estate Duty held that the property gifted to the son, was enjoyed by the deceased right upto the date of his death inasmuch as he seemed to have lived and died in that place. The Assistant Controller was of opinion that the property had passed under section 10 of the Estate Duty Act, 1953. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether, on the facts and in the circumstances of the case, the provisions of section 10 were attracted so as to justify the inclusion of the value of 38, Southern Avenue, in the assessment ? " Now, section 10 of the Estate Duty Act, 1953, as it stood at the material time was, inter alia, as follows : " 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 by contract or otherwise... " The Supreme Court in George Da Costa v. Controller of Estate Duty has construed these provisions. Their Lordships are of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could legally enforce against the donee ; in other words, in order to attract the section it is not necessary that the possession of the donor of the gift must be referable to some contractual or other arrangement enforceable in law or in equity ; even if the donor is content to rely upon the mere filial affection of the donee with a view to enable him to continue to reside in the house, it cannot be said that he was " entirely excluded from possession and enjoyment " within the meaning of the first limb of the section and, therefore, the property would be deemed to have passed on the death of the donor and will be subject to levy of estate duty. Learned counsel for the department submitted to us that this was a fit case for applying t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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