TMI Blog1962 (8) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... to be entitled to deduct the sum of ₹ 62,196 being. The estate duty assessed on the death of Raghunath Rao. The Wealth Tax Officer found that the assessee the sole surviving coparcener of the joint Hindu family is an issueless widower and that there were no other persons entitled to any claims upon the estate. There were no widows or other female members of the family with rights to maintenance. He accordingly held the status of the assessee to be that of an individual. In so far as the claim to deduct the estate duty payable was concerned, the Wealth Tax Officer came to the conclusion that it became a liability only on the date of its determination, viz., 30th November 1957. As the wealth of the assessee had to be computed with reference to the valuation date, that is, the last day of the previous year, 30th March 1957, he decided that the liability to pay the estate duty would not be a proper deduction in respect of the valuation of the estate which has to be made as on the 31st March 1957. 3. Against this assessment, an appeal was taken to the Appellate Assistant Commissioner. The view of the Wealth Tax Officer that the assessee was liable to be assessed as an individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed as an individual. It is principally for the reason that a greater measure of relief is available to a Hindu undivided family that the assessee claims in the present case that he is entitled to be regarded as a Hindu undivided family. Learned counsel for the assessee has referred to certain decisions which deal with the status of the sole surviving coparcener of a joint Hindu family and presses upon us the conclusion that since the property of the joint Hindu family is subject to certain incidents which detract from the full and complete ownership of that property by the last surviving coparcener, the character of the property should in effect fasten upon the last surviving coparcener the character of a Hindu undivided family for the purpose of assessment. 6. In one of the early cases bearing upon the question Vedanthunni v. Commissioner of Income Tax [1933]1ITR70(Mad) the question arose whether the maintenance and arrears of maintenance received by the widow of a member of a Hindu undivided family were received by her as a member of an undivided family and were therefore exempt under Section 14(1) of the Indian Income Tax Act. This question was answered in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they are each member of a Hindu undivided family. Each has a son or sons from whom so far as the evidence goes he is not divided. But the income from the firm is clearly the separate end self-acquired property of the partner, and as it has not been thrown into the common stock, it cannot be regarded as income of the family. It is the income of an individual and assessable to super tax. Later they observed: ...... their Lordships, for the purposes of the present case, will assume that their interest was ancestral property, so that, if either had had a son, the son would have taken an interest therein by birth. But no son having been born, no such Interest has arisen to qualify or diminish the interest given by Moolji to Kanji and to Sewdas. Does then the existence of a wife, or of a wife and a daughter, make it income of a Hindu undivided family rather than income of the individual partner ? Their Lordships think not. A man's wife and daughter are entitled to be maintained by him out of his separate property as well as out of property. In which he has a coparcenary interest, but the mere existence of a wife or daughter does not make ancestral property joint. Intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist so long as there is in existence a widow of a coparcener capable of bringing into existence a son by adoption, and if the widow had made an adoption, the rights of the adopted son are the same as if he had been in existence at the time when his adoptive father had died and his title as coparcener prevails as against the title of any person claiming to succeed as heir of the last surviving coparcener. Dealing with the principle of relation back, they observed that the estate may be definite and ascertained, as when he Is the sole and absolute owner of the properties, or it may be fluctuating, as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. These observations have been relied upon to a certain extent by the learned counsel for the assessee who contends that though there may not be any widow of a coparcener capable of bringing a new member into the family by adoption, nevertheless, if even the assessee himself should make an adoption, it would Introduce a new coparcener into the family unit, thereby maintaining the coparcenary In existence. It is argued that the ownership even by the last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson who inherits the property from the last coparcener can take it subject only to the rights of the female members of the family acquired under the Act of 1937, before the death of such coparcener. The fluidity of the share of the female member can subsist only so long as there is scope for survivorship to operate, that is, so long as the coparcenary subsists. The female member is not a coparcener and she cannot therefore claim any property by right of survivorship. Once the coparcenary terminates by the death of the last surviving coparcener and his property passes on to another by inheritance, while the female member's vested rights under the Act are In no way defeated, she cannot prevent the operation of the law of inheritance and aspire to be placed in the position of the next heir of the last propositus. We are unable to see to what extent the decision in the above case can advance the contentions of the assessee. It is true that there are certain observations which suggest that the coparcenary continues till the death of the sole surviving coparcener. But these observations were made in the context of the right of a widow of a predeceased coparcener under, the Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 14. The second question depends upon a construction of the definition of net wealth in Section 2(m) of the Wealth Tax Act. Net wealth in short means the amount by which the aggregate value of all the assets belonging to the assessee on the valuation date, including the assets required to be included in his net wealth as on that date under this Act is in excess of the aggregate value of all debts owed by the assessee on the valuation date. The short point then is whether the estate duty payable by the assesses on the death of his brother Raghunath Rao is a debt owed by the assessee on the valuation date . This expression came in for construction in Kothari Textiles Ltd., Madras v. Commr. of Wealth Tax, Madras, T. C. No. 210 of 1959 [1963] 48 ITR 816(Mad) , where we held that a claim against an estate of an unascertained nature cannot be regarded as a debt owed by the assessee on the vacation date. It is not disputed that in the present case the assessment to estate duty was made long subsequent to the valuation date there was no doubt the liability under the Estate Duty Act, but that liability was not ascertained or quantified. In the light of our decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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