TMI Blog1998 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... gifted property under the deed of trust. The only clause on which the Revenue has relied is a clause which provides that the trustees may, by unanimous resolution, provide for any remuneration to themselves subject to a maximum of Rs. 3,000 per annum. This refers to a subsequent act of the trustees. It does not, in any manner, make the settlement of shares conditional. Moreover, in the present case, we have been informed that no such resolution was ever passed, nor was any remuneration received by any of the trustees including the donor who was one of the trustees. In these circumstances, we fail to see how the provisions of section 10 are attracted. In the premises, we allow the appeal, answer the question in favour of the accountable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m by unanimous resolution in that behalf from time to time provided that the amount of such remuneration payable to any one trustee for services rendered during any one year shall not exceed the sum of Rs. 3,000 (rupees three thousand only.)" In making the estate duty assessment, the Additional Assistant Controller of Estate Duty, A-Ward, Special Circle-I, by his order dated January 25, 1973, included in the dutiable estate of the Nizam, the sum of Rs. 12,88,169 representing the corpus of the said trust at the time of death of the deceased under section 10 of the Estate Duty Act. This view was upheld by the Appellate Controller. In appeal, however, the Tribunal held that section 10 of the Estate Duty Act will not apply in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear that when property is taken under any gift, to the extent that bona fide possession and enjoyment of it is not immediately assumed by the donee but is retained to some extent by the donor, the benefits so retained will form part of the estate of the donor. In the present case, the indenture of trust quite clearly provides that the shares have been transferred unconditionally under the deed of trust to the trustees for the benefit of the grandson of the donor. The gift under the trust deed of the shares is absolute. The donor has not reserved any right or interest to himself in the gifted property under the deed of trust. The only clause on which the Revenue has relied is a clause which provides that the trustees may, by unanimous re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinued to manage the property until his death and had received varying sums annually as remuneration. After deducting those and other outgoings, he had divided the profits into five equal shares. He had also applied the shares given to his children during their minority. In these circumstances, the court came to the conclusion that section 102(2)(d) of the New South Wales Stamp Duties Act 1920-40 became applicable. We fail to see how the ratio of this judgment can apply in the present case. In the premises, we allow the appeal, answer the question in favour of the accountable person and hold that the corpus of the trust fund is not liable to be included in the estate of the deceased. The respondent will pay to the appellant the costs of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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