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TMI Blog2002 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1953: "1. Whether the Tribunal is right in law and on facts in holding that a deduction of Rs. 1,50,000 in marriage expenses of three unmarried daughters be allowed out of the property of the deceased? 2. Whether the Tribunal is right in law and on facts in holding that while giving exemption under section 33(1)(n) in respect of house property included in the value of the estate one has to assume as if the house happened to come to the share of the deceased on a fictional partition of the Hindu undivided family before the date of the death and in allowing exemption of Rs. 1,00,000 instead of to the extent of the share of the deceased the house property?" The facts leading to this reference, as found by the Tribunal, are as under: Shri Kiranchandra Subodhchandra of Ahmedabad died on May 28, 1980, at the age of 37 years. The estate duty account was filed by the accountable persons (AP) on February 13,1981, showing the principal value of the estate at Rs. 7,77,070. The estate of the deceased consisted of individual estate as well as share from the estate of the Hindu undivided family. In the original estate duty account, the accountable person had claimed Rs. 50,000 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in CED v. Dr. B. Kamalamma [1984] 148 ITR 434, but the Allahabad High Court and subsequently the Madras High Court have taken the view in favour of the Revenue that the marriage expenses can be deducted from the estate of the deceased, only if there is a legal charge on the property of the deceased or on the share of the deceased in the Hindu undivided family property which passed at the time of death of the deceased. Strong reliance is placed on the decision of the Madras High Court in Smt. K. N. Sita v. CED [1999] 239 ITR 108 and the Allahabad High Court in Raj Kumar Goyal v. CED [2001] 251 ITR 501. Support is also sought to be taken from the decision of the apex court in P. Leelavathamma v. CED [1991] 188 ITR 803. Having heard learned counsel for the Revenue and having gone through the aforesaid decisions, we are of the view that if at all it was necessary to decide the controversy, the reasoning of the Madras High Court in CED v. Dr. B. Kamalamma [1984] 148 ITR 434 commends itself to us. In the said decision, the Madras High Court made the following pertinent observations: "A girl born in a Hindu family is entitled to look to the family property for defraying the expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of such property and that this liability does not fall under any of the special categories covered by clauses (a) to (d) of section 44 and is not subject to the limitations contained therein. The case in P. Leelavathamma [1991] 188 ITR 803 (SC) dealt with the case of a wife who was claiming her personal right of maintenance against her husband, under the Hindu Adoptions and Maintenance Act, 1956, but had no charge on the property of the deceased, which, in any case, was not ancestral property of the deceased. On the other hand, in the facts of the present case, the daughters claimed their personal law right to get marriage expenses out of the ancestral properties of the deceased. As far as the decision of the Allahabad High Court in the case of Rajkumar Goyal [2001] 251 ITR 501 is concerned, that decision proceeded on the facts of that case which also indicate the basis of the decision. In the facts of that case, the court held that the daughters succeeded to the estate of the deceased as heirs of class I by virtue of section 8 of the Hindu Succession Act and they became the owners of the properties so inherited and there was nothing to show that the property so inherited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Patna High Court in CED v. P. K. Agarwalla [1988] 169 ITR 699. The Tribunal, however, relied on the Full Bench decision of the Andhra Pradesh High Court in K. Venugopal v. CED [1983] 143 ITR 988 and accepted the assessee's case that at the time of fictional or notional partition immediately prior to the death of the deceased, the entire residential house occupied by the deceased could have gone to the share of the deceased and, therefore, it was open to the accountable person to claim exemption of Rs. 1,00,000 under section 33(1)(n) when the value of the property was Rs. 1,33,266. The Tribunal adopted the following reasoning which had appealed to the Appellate Controller for holding in favour of the accountable persons that the exemption of Rs. 1,00,000 was allowable under section 33(1)(n) of the Act. "Regarding the claim of exemption in respect of the residential property included in the estate of the bigger Hindu undivided family I find that the interpretation of sections 33(1)(n), 34(1)(c) and 39 arising out of harmonious construction of all the three makes it clear particularly after going through the judgment cited by the appellant in this behalf, that while giving ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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