TMI Blog1968 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... iz. : " Whether, on the facts and in the circumstances of the case, the estate duty authorities had any material to come to the conclusion that the donees had not immediately assumed possession of the properties and thenceforward retained the same to the entire exclusion of the deceased and that the provision of section 10 were attracted ? " The facts, as narrated in the statement of the case, are that the applicant who was a son of the deceased, late Inayatur Rahaman Khan, who died on June 25, 1958, submitted a statement of account before the Assistant Controller of Estate Duty, declaring the principal value of the estate of the deceased at Rs. 38,637. The Assistant Controller determined the principal value of the estate at Rs. 1,49,93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire exclusion of the deceased, and that, therefore, the provisions of section 10 of the Act applied to these properties. The applicant, being aggrieved by this decision, required the Board to refer the aforesaid question to this court for its opinion. The main question which we have to consider is whether the income-tax authorities were right in holding that the donor continued to be in possession and enjoyment of the properties gifted to his sons and daughters. This question, in our view, is one of fact to be determined from the facts and circumstances of each case. The learned advocate for the assessee has taken us through the statement of Faru Ahmed, son of the donor, in which he said that he used to collect rents from all the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s late father, the donor. It will be observed that while he had stated in his deposition on February 4, 1960, that the rents after paying the municipal taxes were being utilised for the family expenses including that of the father, he tried to resile from that statement and stated that no part of the rental income was utilised to meet the expense of his late father. It is clear, however, that, as the Central Board of Direct Taxes observed, the children to whom the gift was made by the donor did not enjoy the property to the entire exclusion of the donor which is also one of the requirements under section 10 for excluding the gifted properties from the estate of the deceased. Section 10 of the Estate Duty Act is as follows : " Gifts whene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be pointed out that the statement in the affidavit of April 1, 1960, was made subsequent to the assessment order and is an after-thought. Even otherwise, it does not help the assessee. Their Lordships of the Supreme Court in George Da Costa v. Controller of Estate Duty, in similar circumstances, held that the property gifted in favour of the son who lived with the father belonged to the deceased inasmuch as the donee had not immediately assumed possession and enjoyment of the properties. This case was distinguished in Mohammad Bhai v. Controller of Estate Duty by a Bench of this court, which dealt with possession by a husband of a gift given to his wife. In the result, our answer to the question is in the affirmative and against the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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