TMI Blog1975 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... rn with his son, the accountable person, the widow and son of a pre-deceased brother of the deceased with another minor son of the deceased admitted to the benefits of the partnership. As seen from the order of the Tribunal, which is extracted in the stated case, the deceased credited his two sons and the widow and son of his pre-deceased brother on October 1, 1957, with Rs. 10,950 each and debited his account for the total. This amount was treated as the capital contribution of the donees in the partnership. A deed of partnership itself was entered into on October 25, 1957. On that day, the deceased also executed a settlement deed by which he settled on his minor son, who was admitted to the benefits of the partnership, among others, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id premises and the firm was paying rent of Rs. 300 to the donee and that, therefore, section 10 was not applicable. At the instance of the revenue, the following question has been referred : " Whether, on the facts and in the circumstances of the case, the, Appellate Tribunal was right in law in holding that the sums of Rs. 43,800 and Rs. 65,000 could not be included in the principal value of the estate of the deceased as property deemed to pass on the death of the deceased under section 10 of the Estate Duty Act, 1953 ? " In regard to the sum of Rs. 43,800 sought to be included in the dutiable estate, the facts are not very clear. The Tribunal stated that there was a gift of these amounts to the respective donees on October 1, 1957, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider that the gift was of the money which was absolute and not shorn of any rights over the same. The learned counsel relied on the decisions in Controller of Estate Duty v. N. R. Ramarathanam [1969] 74 ITR 432 (Mad), Godavari Bai v. Controller of Estate Duty [1972] 86 ITR 533 (Mad), Balkishan Muchhal v. Controller of Estate Duty [1974] 94 ITR 243 (MP) [FB], in support of his arguments that when a gift is made by entries in the account books it would amount to only of a gift of an actionable claim. All these three cases related to a gift made by a partner in a partnership firm by debiting his deposit account with the firm. It was held in these cases that with respect to deposit amount of a partner in the firm he had only an actionable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to take it out of the provisions of section 10, the donee must have not only the benefit from the possession and enjoyment of the property but also thenceforward retain such possession and enjoyment to the entire exclusion of the donor or of any benefit to him by contract or otherwise. Since the later condition relating to the retention or possession and enjoyment to the entire exclusion is not satisfied in this case, section 10 is clearly attracted. We are, therefore, of the view that the Tribunal was not right in holding that the sum of Rs. 43,800 was not includible in the principal value of the estate of the deceased. So far as the value of the house which was settled on the minor son of the deceased, the argument of the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Estate Duty v. Smt. Parvati Ammal [1974] 97 ITR 621 (SC), that even in a case where the partnership in which the donor was a partner was carrying on the business in the premises when the settlement deed in terms did not reserve any right in the partnership but was in absolute terms, the principle in Ramachandra Gounder's case [1973] 88 ITR 448 (SC) or Munro's case [1934] AC 61 ; 2 EDC 462 (PC) would not be applicable. In particular he relied on the following sentence in that judgment, which reads as follows ([1974] 97 ITR 621, 634 (SC)) : " The principle to be kept in view in such cases is to examine the deed of gift and find out as to what is the subject-matter of the gift. " The learned counsel for the revenue read the facts in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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