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TMI Blog1997 (3) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... x (Appeals) on the point that the Assistant Controller of Estate Duty should recompute the share of lineal descendants in accordance with the decision of the Calcutta High Court in the case of Satyanarayan Saraf v. Asst. CED [1978] 111 ITR 432 ? (2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has been right in law in upholding the decision of the Commissioner of Income-tax (Appeals) to the effect that the share of lineal descendants should be computed after excluding the shares of the wives of the coparceners for the purposes of aggregation under the Estate Duty Act ?" A brief statement of facts would enable us to properly appreciate the question referred by the Tribunal. When Jamuna Das of Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the so-called shares of the wives of the coparceners. Shri Sawhney argued that the decision of the Calcutta High Court in Satyanarayan Saraf v. Asst. CED [1978] 111 ITR 432 does not lay down the correct proposition of law. Section 34(1)(c) and section 39(1) and (3) of the Act which have a bearing on the questions referred to this court are reproduced below : 34. Aggregation.--(1) For the purpose of determining the rate of the estate duty to be paid on any property passing on the death of the deceased.... (c) in the case of property so passing which consists of a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law, also the interests in the joint family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 34(1)(c) of the Act he aggregated 2/3rds share of the sons and grandsons overruling the contention of the sons that 1/9th share of his wife who was not a lineal descendant should have been excluded for the purpose of aggregation. The Appellate Controller and the Tribunal held that the order of rectification was not appealable. A learned single judge of the High Court quashed the order. While quashing the order of the Assistant Controller, the learned single judge of the High Court held : "Under the Hindu law, in order to ascertain the share of the lineal descendants of H, a notional partition of the smaller Hindu undivided family was also contemplated between son and the grandson. In such a partition the wife of the son would be entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sons would not be entitled to any share in such partition. Therefore, the interest of the lineal descendants in the Hindu undivided family property as provided by section 34(1)(c) of the Act would be 3/5ths and not 39.51 per cent. as computed by the Tribunal. The Tribunal has relied on the decision in Satyanarayan Saraf v. Asst. CED [1978] 111 ITR 432 (Cal). It has been held in that case that in order to ascertain the shares of the lineal descendants of the deceased a notional partition of the smaller Hindu undivided family consisting of the son of the deceased and the wife and sons of that son was also contemplated. With respect, we find ourselves unable to agree with that view. The notional partition as contemplated by section 39 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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