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TMI Blog1971 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... question as in its view it is not a question of law. Counsel for the revenue has filed C.M.P. No. 10381 of 1971 requesting this court to raise the above-mentioned question also as it involves a question of law arising out of the order of the Tribunal and answer the same along with the question referred by the Tribunal. Since counsel for the accountable person has serious objection to the course suggested by the revenue we shall deal with the petition in due course. The reference relates to the estate duty in respect of the estate left behind by A.W. Leslie who died on September 29, 1960. He was the absolute owner of two tea estates by name Shendurini and Linwood. By the deed of gift dated 20th July, 19 54, annexure " A ", he gifted 1/10th share in the above estates to each of his eight sons retaining 2/10ths share for himself. The shares allotted to the sons and retained by the donor have not been divided by metes and bounds. The operative portion in annexure " A " reads as follows : " The disponer covenants with the disponees that they are put in possession of their respective shares from this day and are hereby authorised to secure mutation of the properties in their joint na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r made where donor not entirely excluded.-Property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise : Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death : Provided further that a house or part thereof taken under any gift made to the spouse, son, daughter, brother or sister, shall not be deemed to pass on the donor's death by reason only of the residence therein of the donor except where a right of residence therein is reserved or secured directly or indirectly to the donor under the relevant disposition or under any collateral disposition. " There cannot be any doubt regarding the interpretation of the above section because of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be determined by asking whether the donor, so far as the subject-matter of the gift is concerned in such a case, has had any benefit from out of or in respect of it. If the answer is in the negative the section will have no application. The test for application of the section in such a case will not be whether the donor as a co-owner was in possession of the entirety of the property, for, where property is owned in tenancy-in-common, each is in law deemed to be in possession of the whole. " The above observations certainly support the assessee. The Judicial Committee in Commissioner for Stamp Duties of New South Wales v. Perpetual Trustee Co. Ltd. had to interpret section 102(2)(d) of the New South Wales Stamp Duties Act, 1920, couched in terms similar to section 10 of the Estate Duty Act, 1953. The Judicial Committee after a review of the case law and after examining the decision of the House of Lords in Earl Grey v. Attorney-General, which dealt with an identical provision in the English statute, observed thus at pages 445 and 446 : " The learned judges who decided In re Cochrane all thought that Grey (Earl) v. Attorney-General was clearly distinguishable, and their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not bring himself within the mischief of the section. I venture to repeat in other words what I have already said when dealing with section 43 alone, for its underlying principle is not altered by an alliance with section 56. In the simplest analysis, if A gives to B all his estates in Wiltshire except Blackacre, he does not except Blackacre out of what he has given : he just does not give Blackacre. And if it can be regarded as a 'benefit' to him that he does not give but keeps Blackacre, it is a benefit which is in no relevant sense (to use the language of Lord Tomlin) 'referable' or (to use that of Lord Russell of Killowen) 'attributable' to the gift that he made of the rest of the Wiltshire estate." The next case to which we would like to refer is Norman Clyde Oakes v. Commissioner of Stamp Duties of New South Wales. This case was concerned with a similar provision in the New South Wales Stamp Duties Act, 1920-1940. The facts are almost identical to the case before us. The donor executed a deed of poll by which he created an equal interest in favour of his four children along with himself as tenants-in-common in a grazing property which belonged to him. In dealing with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been satisfied. We cannot agree. As a result of the partnership no material benefit was retained by the deceased in the shares gifted to the sons. The fact that the deceased was made the managing partner is not sufficient to constitute a " benefit " within the meaning of section 10 of the Estate Duty Act, 1953. No remuneration was given to him under the terms of the partnership. It has not also been proved that any remuneration was in fact paid to the father as managing partner. The terms of the partnership provide for his getting only or being liable for 2/10ths share in the profit or loss of the partnership. We are, therefore, satisfied that there was no retention of benefit by the deceased over the interest gifted on account of the partnership deed, annexure " B.". We are thus satisfied that section 10 has been complied with in respect of the subject-matter of the gift. We shall now examine the prayer in C.M.P. No. 10381 of 1971 to answer the second question which the Income-tax Appellate Tribunal refused to refer. The petition was opposed by the assessee on the ground that the remedy of the Controller of Estate Duty is only under section 64(3) of the Estate Duty Act and not by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It seems to us that the most convenient way to deal with the situation is this. When a statement of case, with the question of law framed by the Tribunal, is filed in court for disposal, if a party is aggrieved and wants to contend that certain further facts ought to be stated, or certain questions of law should be raised, he can make an application by way of notice of motion. That should be heard along with the case stated by the Tribunal for the court's opinion. At that time, the court will consider whether the statement of case is complete for the question of law raised by the Tribunal. The court can also consider whether on the case stated by the Tribunal the proper question is raised or not. That is the proper time for an aggrieved party to bring to the notice of the court that certain further and other facts are necessary to be stated or certain further or other questions of law arise and should be brought for decision by the court." In Lakshmiratan Cotton Mills Co. Ltd. v. Commissioner of Income-tax, the question arose whether a court can under section 66(4) of the Indian Income-tax Act, 1922, call for an additional statement on questions not referred under section 66(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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