1971 (10) TMI 24

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..... 61. The property in dispute was built between 1931 and 1937, and was registered in the name of the wife of the deceased, namely, Smt. Tulsa Devi. The source of money spent on this property was the husband, Shri T. D. Kochhar. Shri Kochhar continued to reside in the house till his death. On these facts the Assistant Controller of Estate Duty included the same in the estate of the deceased. The accountable person filed an appeal. The Zonal Appellate Controller held that in view of section 6 of the Estate Duty Act the deceased had no disposable interest in the property and hence it could not be included in his estate. The Appellate Controller rejected the alternative submission raised on behalf of the department that the property was includib .....

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..... of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death Provided further that a house or part thereof taken under any 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 is reserved or secured directly or indirectly to the donor under the relevant disposition or under any collateral disposition. " In Abbas Ali Meerza v. Controller of Estate Duty, a Bench of this court has held that the second proviso to section 10 of the Act is not retrospective and that the secon .....

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..... rty, namely, immovable property was constructed. The cash and the immovable property were not the same thing. They are distinctly describable and identifiable. Section 10 applies when the donor is in bona fide possession and enjoyment of the gifted property. This section presupposes that the donor continues in possession and enjoyment of the property which he had gifted. It does not, in terms, apply to properties which may have been brought into existence after converting the gifted property. Here, the house property was not the subject-matter of the gift made by the deceased. He had gifted cash money. There is no evidence to the effect that he remained in possession and enjoyment of the cash money itself. We affirm the view of the Tribunal .....

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