TMI Blog1976 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... siness as at the date of partition was Rs. 2,76,727. A sum of Rs. 46,121 was allotted to the share of the deceased and the balance of Rs. 2,30,606 was allotted to the share of the deceased s son. Against the deceased s rightful half share of Rs. 1,38,364, he was actually allotted in the family partition only a sum of Rs. 46,121. The difference amounting to Rs. 92,942 was included in the principal estate of the deceased under s. 9 r/w Expln. 2 to s. 2(15) of the ED Act. 3. On appeal, the Appellate Controller of Estate Duty held (1) There can be no question of extinguishment at the expenses of the deceased of a debt or other right so as to deem it as a disposition to attract Expln. 2 to s. 2(15) of the ED Act. (2) In a partial partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of two years prior to the death of the deceased. The question arose whether there is a liability to estate duty when the deceased kartha took a lesser share than his entitlement. The Madras High Court held that the difference between the half share to which the deceased was entitled and the 1/5th share taken by him on a partition of the family properties effected within two years prior to his death was liable to estate duty by reason of s. 9(1) r/w s. 27 and Expln. 2 to s. 2(15) of the ED Act, 1953. Before us, it is contended for the accountable person that when there is a partition and one of the coparceners prefers not to receive his full share, then the difference between the amount which he actually received and the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a joint family there is no disposition of the property for purposes of GT Act, it follows that there can be no disposition for purposes of ED Act. It is only after recognising the well-established principle that a partition among the members of an HUF would not be a transfer in the normal sense, the Madras High Court has laid down in Ranganayaki Ammal Ors. vs. C.E.D. (Mad) that the peculiar definition of "disposition" in Expln. 2 to s. 2(15) deems the extinguishment of a right and the certain of a benefit hereby to be a disposition in the nature of a transfer and s. 27 makes any disposition made by the deceased in favour of his relative to be treated for purposes of s. 9 as a gift subject to certain exceptions. This reasoning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by partial partition or total partition. 8. The next point in dispute relates to the inclusion of the sum of Rs. 10,000 in the principal estate of the deceased. The Asstt. CED brought to duty a sum of Rs. 10,000 being the cash gift made by the deceased in favour of his grandson on 30th Aug., 1972. The Appellate Controller of Estate Duty held that the gift is out of the funds belonging to the HUF and not to be deceased and the inclusion of this amount in the principal estate of the deceased is erroneous. 9. Before the Tribunal, the contention of the Revenue is that the deceased had a half share in the properties belonging to the HUF and since the gift was admittedly made within a period of two years, its inclusion under s. 9 by the As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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