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TMI Blog1984 (6) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... estricting the relief under section 50B in respect of sale of assets by Seth H.B. Mafatlal (HUF) effected for the purpose of payment of estate duty to one-third of the capital gains tax paid by the HUF. He ought to have allowed relief under section 50B with reference to the whole of the capital gains tax paid by the HUF. " The deceased was the karta of Seth H.B. Mafatlal (HUF) at the time of his death. He was survived by his wife and a son so much so that his interest ceasing on his death was one-third in the HUF property. It is common ground that when the Assistant Controller passed the assessment order originally, he had not computed the relief allowable to the accountable person under section 50B of the Estate Duty Act, 1953 ('the Act'). However, while giving effect to the order of the Appellate Controller by passing an order on 8-4-1976, the Assistant Controller computed the relief under section 50B at Rs. 19,75,764 which includes a sum of Rs. 37,475 in respect of the deceased's interest in Seth H.B. Mafatlal (HUF) 4. It is common ground that the HUF had paid capital gains tax of Rs. 84,979 in respect of 450 ordinary shares of Standard Mills Co. Ltd., belonging to the HUF and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to estate duty. Particular reliance was placed on the provisions contained in section 34(1)(c) for aggregating the value of the interest in the joint family property of all the lineal descendants of the deceased for determining the rate of estate duty applicable. Alternatively, he submitted that so long as the joint Hindu family is in existence no coparcener can predict with an amount of certainty that he has a particular share in a specific property. At the best, he can say that he has one-third or one-fourth share in the entire property of the HUF. Inviting our attention to the fact that the value of the deceased's share in the HUF property has been determined at Rs. 16,07,976 and that the HUF's assets sold amounted to Rs. 10,34,950, he urged that it can be reasonably inferred that the assets sold were entirely out of the deceased's share so that the estate is liable to relief in respect of the total amount of capital gains tax of Rs. 12,426. It is vehemently urged that the provisions contained in section 50B are in the nature of relief to the taxpayers and that, therefore, they should be broadly interpreted. Shri Anjani Kumar, the departmental representative, has, on the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property' has been defined in section 2(15) of the Act to include any interest in property. It cannot, perhaps, be disputed that the deceased's interest in the HUF property is a property within the meaning of section 2(15). Estate duty is leviable on the deceased's above interest both because it is the property which the deceased was at the time of his death competent to dispose of in view of section 30 of the Hindu Succession Act, 1956, as well as under section 7 of the 1953 Act representing the cessor of his coparcenary interest in the HUF property. 8. The deceased's interest in the HUF property is certainly a property. However, it is doubtful whether each and every asset owned by the HUF is or can be treated 'property deemed to pass on the death of the deceased on which estate duty is leviable under the Act'. It is pertinent to mention that no coparcener can ever predict whether his share in the HUF property is one-third or one-fourth, etc., until there is a partition in the family. The notional partition, as has happened in this case, only means that the deceased's interest in the HUF property is determined at one-third. This, to our mind, only means that the deceased's intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate fees on the basis of gross duty payable. " It is admitted that the reference to section 50B should be read as reference to section 50 of the Act. The Assistant Controller has allowed the accountable person proportionate relief under section 50 observing as under : " Probate court fees of Rs. 6,103.75 have been paid. A copy of the Succession Certificate has also been filed. Relief as due restricting it to the deceased's interest in HUF assets and after excluding proportionate fees in respect of assets not included in estate duty assessment is being allowed. " The Controller has, on the other hand, accepted the claim as in his view there was no ambiguity in section 50 which clearly stipulates deduction from the estate duty payable. It is submitted before us by the departmental representative that the Controller failed to appreciate that like section 50B section 50 also requires relief to be given in respect of the property on which estate duty is leviable. The property being of the HUF in which the deceased had only one-third share and on which estate duty is leviable, for reasons given by us in paragraphs 7 and 8 of our order, we hold that the Controller was not justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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