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TMI Blog1988 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... value of all the properties given by the deceased under the partition deed cannot be included in the principal value of the estate of the deceased under section 9 read with Explanation 2 to section 2(15) of the Act ? 4. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the provisions of section 9 read with Explanation 2 to section 2(15) of the Act would not apply to the assessee's case ? " The first two questions are the subject-matter of T.C. No. 520 of 1979 and questions Nos. 3 and 4 are the subject-matter of T.C. No. 143 of 1978. The facts which are relevant as noticed by the Tribunal for the purpose of these reference petitions lie within a narrow compass. One Hariram was the son of a rich businessman by name Sokkalal Ram. Hariram was born on April 9, 1934. While he was still a minor, he married the accountable person in the year 1951. Later on, he married the accountable person's sister in March, 1955. Hariram's father left a will dated May 11, 1942, whereunder after making some provision for his wives and a temple, the rest of the properties were bequeathed to the then minor son, Hariram. On the death of Hariram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 10. Applying the provisions of section 10, he held that a sum of Rs. 6,62,400, according to the computation, was includible in the principal value of the estate which passed on the death of the deceased. The accountable person then filed an appeal to the Tribunal and that appeal was E.D.A. No. 93(Mas)/1972-73. The Assistant Controller also filed an appeal against the order of the Appellate Controller challenging the reduction of the value of the buildings which were settled by the document dated March 9, 1955. The Tribunal took up for consideration first the appeal filed by the accountable person. On a perusal of the account books and the items of income from the settled properties and the expenditure incurred on behalf of the settlees, the Tribunal came to the conclusion that the deceased had not appropriated any income from the settled properties and that the deceased did not have for himself any benefit of the income accrued from the settled properties. The Tribunal went on to conclude that instead of acquiring any benefit from the settled properties, the deceased had become indebted on account of the fact that the expenditure incurred on the maintena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the properties as will be clear from the accounts referred to by the Appellate Controller and similar being the situation with regard to the property which was the subject-matter of the document dated December 10, 1954, the deceased must be treated as not having completely excluded himself from the income of the properties settled by those two documents. Consequently, according to learned counsel, the main part of section 10, of the Act will be attracted. Section 10 of the Estate Duty Act reads as follows : "S. 10. Property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise: Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift,, exclusively retained as aforesaid; if by means 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties which are settled for the benefit of the minors, it cannot be said that the settlor has not excluded himself from either the settled properties or the income from the settled properties. Having regard to the finding recorded by the Tribunal for which there was ample material in the form of account books, it is difficult to accept the contention that section 10 of the Act was attracted to the facts of the present case. Accordingly questions Nos. 1 and 2 have to be answered in the affirmative and in favour of the accountable person. So far as questions Nos. 3 and 4 are concerned, it is vehemently argued by Mr. C. V. Rajan on behalf of the Revenue that the Tribunal has proceeded to decide the contention with regard to the applicability of section 9 of the Act on the footing that the property was self-acquired property. The contention is that all the members of the joint family had acquired a right in the property which had fallen to their share by partition only as a result of the partition deed dated January 20, 1964, and the partition must, therefore, be treated as a disposition for the purpose of section 9 of the Act and the entire property which is the subject-matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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