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TMI Blog1992 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... Vacant Land in Urban Areas (Prohibition of Alienation) Act, 1972, as part of the condition existing in the open market ? 2. Whether, in view of the facts and circumstances of the case, the Tribunal was right in upholding the aggregation of properties under section 34(1)(c) of the Estate Duty Act ? 3. Whether, in view of the facts and circumstances of the case, the Tribunal was right in inferring that there was goodwill of the business of the two firms in which the deceased was a partner? 4. Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the estate duty payable by the accountable person is not deductible in computing the net principal value of the estate of the deceased ? " Briefly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice. All these contentions were not accepted by the Assistant Controller. The accountable person, therefore, preferred an appeal before the Appellate Assistant Controller of Estate Duty. The same three contentions were raised before the Appellate Controller also. In addition, one more contention was raised and that was whether the estate duty payable was deductible while determining the net principal value of the estate. The Appellate Controller dismissed the appeal and, therefore, the assessee preferred Estate Duty Appeal No. 62/Ahd./1975-76 before the Income-tax. Appellate Tribunal. All the four contentions which were raised before the Appellate Controller were raised before the Tribunal. As regards the valuation of the plot, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the claim made by the accountable person was rejected. As the assessee was not satisfied with the decision of the Tribunal, it applied to the Tribunal to refer the above-stated questions to this court. Though the assessee is served, unfortunately no one has appeared on behalf of the assessee and, therefore, we are required to answer the questions with the help of learned counsel appearing for the respondent. He pointed out that the question of non-aggregability of the interest of the lineal descendants in the joint family property is now covered by the decision of this court in Gunvantlal Keshavlal v. CED [1982] 134 ITR 533. In that case, this court has observed that, on a plain reading of section 34(1)(c) of the Estate Duty Act, 1953, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the assessee is more or less covered by the decision of this court in Sumatilal Chimanlal Shah v. CED [1982] 138 ITR 143. In that case, this court, after referring to the principles digested from different cases under the title " if sold " in section 36 of the Estate Duty Act, observed that the principal value does not postulate that there should be an actual sale in the open market. What is envisaged under the said section 36 is that there is an open market and the property could be sold in such market. This principle has been enunciated by a majority of the House of Lords in Crossman's case [1937] AC 26; 2 EDC 537 and confirmed unanimously in Duke o Buccleuch v. IRC [1967] 1 AC 506 (HL) and Lynall's case [1972] AC 680 ; [1972] 83 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be valued as if it is sold in the open market. Learned counsel also drew our attention to the decision A of the Supreme Court in Purshottam N. Amarsay v. CWT [1973] 88 ITR 417. This decision, to some extent, supports the contention raised by him. In that view of the matter, question No. 1 will have to be answered in the affirmative. Question No. 3 which is referred to us is really a question of fact, but it appears that the Tribunal has referred the same to this court possibly thinking that it has become a mixed question of law and fact as the law laid down by the Supreme Court in Rustom Cavasjee Cooper v. Union of India [1970] 40 Comp Cas 325 has been applied for the purpose of holding that the two firms had acquired goodwill even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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