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TMI Blog1983 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ller, in computing the value of the assets of the HUF the gift made by the family within two years period of death has to be included. On appeal, the Appellate Controller held that gift made by the deceased alone will have to be included under section 9 of the Act. The HUF is a separate legal entity and, therefore, this section cannot cover such gifts. On that ground, he deleted the inclusion. 3. The department is on appeal before us. Shri Chawla, for the department, submitted that on a proper reading of section 39(3) it would be seen that the sub-section creates a legal fiction ; that legal fiction is to assume that the properties of the HUF would be the properties of the individual-deceased. The sub-section clearly states that all the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had there been a partition on the date of death. 5. Then comes sub-section (3). The sub-section is quoted below : "For the purpose of estimating the principal value of the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law in order to arrive at the share which would have been allotted to the deceased had a partition taken place immediately before his death, the provisions of this Act, so far as may be, shall apply as they would have applied if the whole of the joint family property had belonged to the deceased." The first part of the sub-section shows that the provisions would be used for the purpose of estimating the principal value of the joint family property. The latter part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties of the HUF. 6. It is true that the commentary of the learned author, Shri V. Balasubramanian relied on by Shri Chawla supports him. However, the learned author himself had revised his opinion on this point. In the Fourth edition, the following papa occurs : "On a reconsideration of the position in the light of the later decisions as well as the experience in the administration of the Act, this view does not seem to be the correct view. For the purposes of estate duty the actual property passing or deemed to pass on the death should in the first place be computed and its principal value ascertained in the second place. Fixing of the items of property is entirely a different process from that of estimating the value. Under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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