9911796707
TMI Blog1979 (6) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... . By a dated 1st March, 1970, he divided the property into four lots and gifted each lot to the son and three daughters, respectively. Part of the property in which the building was situated fell to the lot of one of the daughters and the deceased continued to live in that property till his death on 7th December, 1970. The accountable person claimed exemption with reference to this property under s. 33(1)(n) and the Asst. Controller granted the exemption. The accountable person had some other grievance against the assessment and took the matter in appeal to the Appellate Controller. The Appellate Controller considered that the exemption given by the Asst. Controller Under s. 33(1)(n) was erroneous and he, therefore, issued an enhancement no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D. Act provides that property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivid which shall not have been, bona fide, made two years or more before the death of the deceased shall be deemed to pass on the death. As the gift in the present case was on 1st March, 1970, and as the deceased died on 7th December, 1970, s. 9 was clearly attracted so that the property had to be deemed to pass on the death. Section 33 gives certain exemptions and to the extent relevant to the facts here the provision runs as follows : " To the extent specified against each of the clauses in this sub-section, no estate duty shall be payable in respect of property of any of the following kinds belonging to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submission was that if on the date of gift the deceased was in possession, he must be deemed to be in possession on the date of death so as to attract s. 33(1)(n). Relying on s. 3(3) it was argued that whatever applied to passing on death would apply to deemed passing and that as in this case the exemption would have been available if the property actually passed on death, it should be available even if it is deemed to pass on death. It is unnecessary to go into the wider question as to the effect of s. 3(3) and s. 9 in considering the exemption under s. 33(1)(n) as far as the present case is concerned. In the present case we have already extracted the finding of the Tribunal that since the date of the gift the property belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased had delivered possession to the donee on 1st March, 1970. Thereafter, the deceased could not have any right of user in the said building unless he had, under the terms of the document, reserved such a gift. There is no such reservation in the present case. Consequently, the deceased would have been there only as a permissive user of the building. The expression " exclusively used by the deceased for his residence " would postulate the existence of a right of user and not a mere permissive user or user otherwise than under a right. Even assuming that permissive user or user otherwise than under a right is enough to satisfy the requirements of the provision, the user as residence in the present case is not exclusive because it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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