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TMI Blog2001 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... uperstructures in question formed part of the property that passed on the death of Hari Ram?" The background facts necessary for disposal of the reference are as follows. Hari Ram (hereinafter referred to as "the deceased") died on February 25, 1976, leaving behind his wife, Smt. Veeran Wali (hereinafter referred to as "the accountable person"). By order dated December 30, 1978, the Assistant Controller of Estate Duty (in short "the Assistant Controller"), assessed the principal value of the property that passed on the death of the deceased to the accountable person at Rs. 2,33,104. The said figure included Rs. 1,67,240 as being the value of the house situated at No. 42/75, Punjabi Bagh, Delhi. The site of the house was acquired by the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere held to be applicable to the facts of the case. The said decisions are Smt. Shantabai Jadhav v. CED [1964] 51 ITR (ED) 1 (AP); Smt. Denabai Boman Shah v. CED [1967] 66 ITR 385 (AP); Aloke Mitra v. CED [1971] 82 ITR 430 (All); CED v. M.L. Manchanda [1974] 93 ITR 173 (P & H) and CED v. T.N. Kochhar [1973] 89 ITR 216 (All). On being moved for a reference, the question as set out above has been referred for the opinion of this court. We have heard learned counsel for the Revenue. There is no appearance on behalf of the accountable person in spite of notice. Learned counsel for the Revenue submitted that in the case of a benami transaction, the real owner has got the title though the property is in the name of the benamidar. The real owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al land.--Notwithstanding anything contained in section 5, this Act shall cease to apply to the levy of estate duty in respect of agricultural land. 5C. Discontinuance of levy of estate duty.--Notwithstanding anything contained in section 5, this Act shall cease to apply to the levy of estate duty in respect of any property (other than agricultural land) which passes on the death of any person on or after the 16th day of March, 1985. 6. Property within disposing capacity.--Property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death." As has been observed by the apex court in CED v. Aloke Mitra [1980] 126 ITR 599, the Act imposes a tax upon the principal value of all properties, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject. The liability to pay estate duty under section 5(1) of the Act arises upon the death of the real owner and not of the benamidar who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to pay estate duty. As the factual position as highlighted above would go to show, the real own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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