TMI Blog1981 (10) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of account are merely assertions and if they are proved, then these are admissible in evidence. Hence, these cannot take the place of proof or fact proved. 9. Shri Viswanathan further contended that the income of this flat was added to the income of the deceased, but he has not shown that it was added to the income of the deceased in his assessments as on account of his wife being his benamidar, regarding the aforesaid property. Shri Viswanathan has also not brought on record any evidence to show that in the assessment proceedings of the deceased, the issue of benami transaction or sale of this flat was there, and the authorities below found that it was the deceased who was the actual owner of this flat and his wife was his benamidar. 10. On the other hand, there is evidence on record that after the death of the deceased, his wife was assessed for the income of the flat. Much more, the revenue took the estate duty for the value of this flat from the accountable person of the deceased (wife). Besides, no doubt, the will of the deceased shows that all his properties were his self-acquired properties. However, some of his properties gifted to his wife were in her name in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flat No. 85, nor his wife was his benamidar, and, as such, the value of Flat No. 85 at Rs. 32,281 cannot be added to the estate of the deceased. 14. The cases relied on by the learned departmental representative, namely, O.S. Chawla v. ACED [1973] 90 ITR 68 (All.) and Muthukaruppi Achi Clarance Pais v. CED [1980] 124 ITR 143 (Kar.) are of no help to the revenue, as these are distinguishable. 16. In the result, the appeal is dismissed. Per Shri K.S. Vishwanathan, Accountant Member --- It is my misfortune that I am unable to agree with my learned brother in respect of the inclusion of the value of the flat held in the name of the wife of the deceased and the outstanding rent thereof in the deceased's estate. These facts are not disputed: 1. The purchase consideration came from the deceased. 2. The asset is shown in the balance sheet of the deceased. 3. The rent outstanding also is shown in the balance sheet on the asset side. Thus, the books show that the property is the asset of the deceased. 4. The deceased had been assessed on the rental income. 2. These facts completely prove the department's case. Nothing further is required for its inclusion. 3. The poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s done after the death of the deceased is not relevant? Per Shri B.B. Palekar, President --- This matter has come up before me because there has been a difference of opinion on one point between the two learned members who heard the relevant departmental appeal in the first instance. The point which has been so referred to me is the following : "Whether, on the facts and in the circumstances of the case, the department has succeeded in proving that the property standing in the name of the wife of the deceased is benami of the deceased ; hence includible for estate duty assessment of the deceased?" The relevant ground of appeal is as below: "On the facts and in the circumstances of the case, the learned Appellate Controller of Estate Duty erred in directing Assistant Controller of Estate Duty to delete the additions made on account of (i) the value of Rs. 32,281 in respect of Flat No. 85 in 'Deepak Building' at Peddar Road, Bombay-400 026, and (ii) the outstanding rent of Rs. 6,625 from the principal value of the estate of the deceased?" Thus, the question is whether Smt. Sitabai, the wife of deceased Sri Doulatram Naraindas in whose name the abovementioned flat stood, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my aforesaid trustee....." There is no clear mention of the above mentioned flat. 5. Smt. Sitabai's Will is very brief and the relevant portion is as below: "I give all my property movable and immovable to my son Ram. No one else shall have any interest therein." Here also there is no specific mention of the flat. 6. Doulatram died on 14-4-1970. His estate was administered by Shri M. T. Wadhwani, who is the accountable person. 7. Smt Sitabai died on 8-10-1970. Her legal heir is Ram. 8. The flat was in a co-operative society and one Sri Lalwani had occupied it as a tenant. The membership of the co-operative society was in the name of Smt. Sitabai during her lifetime and not in the name of the deceased. At the stage of the administration of the estate of the deceased as well as the estate of Smt. Sitabai the concerned persons included the value of the flat and the outstanding rent from it in the estate of Smt. Sitabai but not in the estate of the deceased. 9. It is important to notice firstly that is was Shri M. T. Wadhwani who was the accountable person in the proceedings for levy of estate duty in the case of the deceased and secondly that the relevant assessment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf beneficial owner of the property. I may mention some of the aspects hereafter. It is common ground that the consideration for the flat had been paid by the deceased. However, the stand of the accountable person is that the deceased had made a gift of the property to Smt. Sitabai before he made his will on 17-9-1969 and the recital in the will which I have extracted in para 4 is relied upon. The value of the property was declared by the deceased in his return of net wealth for the assessments to wealth-tax and the income was also declared in the income-tax return. Assessments were made also accordingly. However, this is explained as a recognition of the operation of the provisions of section 4 of the Wealth-tax Act and section 64 of the Income-tax Act. The inclusion of the value of the flat in the assessment to estate duty arising from the death of Smt. Sitabai is of no significance because it would be so included whether she had received the flat as a gift during the lifetime of the deceased or had inherited it after his death or had adverse possession of the flat. That the tenant paid the rent of the flat to Smt. Sitabai before and after the death of the deceased is similarly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t give any indication that the receipts by way of rent from the flat had been credited to the account of the deceased or otherwise beneficially enjoyed by him. It is true that the value of the flat and the outstanding rent are both displayed on the assets side of the balance sheet but this may be so simply because a list of the assets was prepared without any correlation with contemporary books of account for the period ended 31-3-1970. 17. I gave time to the learned departmental representative for the production of the relevant material from the assessment records of the deceased (and Smt. Sitabai) for assessments to income-tax and wealth-tax so as to get at some reliable evidence to show that the deceased had kept books of account and that the balance sheet was drawn up as the final account in relation to the books of account. He has filed copies of assessment orders for the assessments to income-tax and wealth-tax from 1968-69 to 1970-71. There is nothing therein to show that the deceased had kept any books of account. On the contrary, it would appear that having prepared a computation of net wealth on the basis of a balance sheet, which was in all probability merely a stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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