9911796707
TMI Blog1984 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 in respect of relinquishment of the share by the deceased in the partial partition of the HUF, which was treated by him as a disposition in the nature of a gift, as discussed in the assessment order. The Assistant Controller found that the deceased was a member of Girdharilal Shamlal, HUF, that there was a partial partition of the assets of the HUF on 3-11-1978 between Girdharilal and his minor son, Ashish, and that in this partition the deceased was not allotted any share. The Assistant Controller, therefore, concluded that this was a case of unequal partition and that in the light of the Supreme Court decision in the case of CED v. Kantilal Trikamlal [1976] 105 ITR 92, it amounted to a disposition dutiable under section 9 read with sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Kantilal Trikamlal. The appellant feels aggrieved by this order and has come up in appeal to the Tribunal. 4. Shri V.P. Mehta, the learned counsel for the accountable person, reiterated the submissions that were urged before the departmental authorities and submitted that there was no gift by the deceased which would attract duty under section 27 read with section 9. He placed before us a copy of the memorandum of partial partition dated 7-11-1978 and pointed out that it was only a case of partial partition of the movable assets specified therein. that in respect of other properties, the HUF continued to be joint and undivided, that the deceased also had a share in the 50 per cent share that was allotted to her husband as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Shri Girdharilal Shamlal, the karta of the family and his minor son, Master Ashish. The shares allotted to Shri Girdharilal Shamlal is declared as for the benefit of his smaller HUF consisting of himself, his wife, Smt. Urmila Vaid (the deceased in the present appeal) and their unmarried, daughter (Kum. Rita). The memorandum further states that all other assets of the family belonged to the larger HUF and continued to be joint and undivided and remained the property in the said HUF. In clause 6 of this memorandum, it is stated as follows : " 6. That the party of the third party voluntarily agreed not to receive any share out of the said assets in consideration of the party of the first part having agreed to continue to provide for her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this disposition. The value of this right to maintenance is certainly sufficient consideration in money or money's worth for the own use or benefit of the deceased. In fact, the departmental authorities have ignored this clause while construing the memorandum of partial partition. If the right of the deceased to maintenance is taken into account, it would be full consideration in money's worth for the disposition made by her as contemplated in section 27(1)(a). The value of the alleged gift included in her estate is Rs. 22,630 only. This is stated to be the value of her one-third share in the assets, which she is alleged to have foregone. At the same time, it would be noticed that the net principal value of the estate of the deceased as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one-third share of one-third minus one-twelfth. It was held by the Bombay High Court that under the Hindu law, the partition should be made rebus sic stantibus as on the date of suit and consequently, the branch was entitled to a full one-third share. We are unable to see how this decision supports the conclusion of the revenue in the present case. On the contrary, it seems to lend support to the contention of the accountable person that the deceased Smt. Urmila Vaid's right to an equal share in the HUF properties in a final partition was in no way impaired, which means that there was no disposition made by the deceased that could be treated as a gift under section 27. 10. Even otherwise, we find considerable force in the alternative subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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