9911796707
TMI Blog1981 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... s, one of the questions which arose was whether the value of the share of the lineal descendant of the deceased was includible in the dutiable estate for rate purposes under s. 34(1)(c) of the E D. Act, 1953 (hereinafter referred to as " the Act"). The Incometax Appellate Tribunal, agreeing with the view taken by the Asst. Controller and the Appellate Controller, held that on the death of the deceased who was a coparcener in the Mitakshara Hindu family, his interest ceased under s. 7 of the Act and that the value of the interest of the lineal descendant of the deceased in the joint family property was includible in the dutiable estate for rate purposes under s. 34(1)(c) of the Act. The accountable person has challenged the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the property that would have been allotted to him if the partition of the property has taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Now, there is nothing on the record to show whether in the instant case the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative. It, however, appears the Tribunal has proceeded to resolve the controversy raised before it on the basis that the proviso to s. 6 of the Hindu Succession Act was attracted. In other words, the Tribunal proceeded to examine the question raised before it on the assumption that the deceased had left him su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced by Mr. Patel, reads as under: " 6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.-For the purposes of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second question which is dealt with in Expln. appended to s. 6. A fiction or a workable formula is evolved thereby for the limited purpose of quantification or ascertainment in order to spell out what is to be computed, how. The aid of Expln. I is to be taken only in order to ascertain the share or interest of the deceased coparcener in the coparcenary property. Explanation I to s. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed and assumed for the limited purpose demarcat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, in so far as is relevant, reads as under : "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 property of all the lineal descendants of the deceased, member; shall be aggregated so as to form one estate and estate duty shall be levied thereon at the rate-or rates applicable in respect of the principal value thereof." In order to attract the application of s. 34(1)(c) what is necessary to establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ------------------------------------------------------------------------------------------------------------------- QUESTIONS ANSWERS ---------------------------------------------------------------------------------------------------------------------------------------------------- 1. Whether, on the facts and in Not necessary to answer. the circumstances of the case, the Tribunal was justified in holding that on the death of the deceased who was a coparcenary in a Mitakshara Hindu joint family, his interest ceased under section 7 of the Estate Duty Act ? 2. Whether, on the facts and in In the affirmative and against the circumstances of the case, the the accountable person. Tribunal was justified in hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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