TMI Blog1984 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... tate at an amount of Rs. 8,62,734. Against the assessment as made, the accountable person filed an appeal only on one issue, the issue related to the Assistant Controller's action in including in the principal value of the estate passing on death an amount of Rs. 4,57,685 being HUF property taxable under sections 9, 10 and 13 of the Estate Duty Act, 1953 (' the Act '). The accountable person admitted that movables of value of Rs. 57,781, being the proportionate share of the deceased, may be included and an amount of Rs. 2,83,124 be included for rate. He disputed the Assistant Controller's action in including in the principal value the entire value of HUF property of an amount of Rs. 4,57,685. The Controller's order in its brevity indicates the basic principles but does not give the full facts. In para (2) the Controller had observed as under : "On 7-2-1969 the deceased converted his self-acquired property into HUF by throwing it into the common hotchpot. The ACED held that this amounted to a gift, or disposition and applied all the provisions of sections 9, 10 and 13 read with section 29(1) of the Estate Duty Act. The income-tax and wealth-tax assessments in respect of this prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' a market value of the property at 8, Babulnath Road belonging to Shri Ambalal Bhailal Patel and Smt. Jasodu Ambalal Patel at Rs. 56,000 '. Now, this valuation report records a fact that of the three floors the first floor is owner occupied. Shri Alphonso states that even though the ground of appeal taken is not wholly accurate, the relief which is sought by the Controller in the appeal is clearly indicated. It is stated that the relief which the Controller seeks is that the order of the Assistant Controller be restored. Shri Alphonso pointed out that he had earlier brought to our notice that whereas the accountable person had returned as the share of the lineal descendant's share to be included for the purposes of rate an amount of Rs. 2,73,124 and the share of the deceased in the HUF property at Rs. 57,781, the Assistant Controller had brought to charge an amount of Rs. 4,57,685. It is pointed out that when the Assistant Controller gave effect to the order of the Appellate Controller by his order under section 62 of the Act, the adjustment made was that in respect of the figure of Rs. 4,57,685 as already brought to charge against which the Assistant Controller included the one- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho is the accountable person. The records do not show the names of the other three members. It is, however, an accepted position that on partition Shri Ambalal Patel was entitled to one-sixth share and that four-sixth has to be included for the purposes of rate. According to Shri Alphonso, Shri Ambalal Patel had the full power of disposition over the entire property of the value of Rs. 4,57,685 as being a karta, he could have effected a partition at his will. On this premise Shri Alphonso submits that the property is to be included in the estate in terms of section 6 of the Act as the deceased was competent to dispose of the property. 8. Shri Patel for the accountable person submits that the Assistant Controller in his order has not referred to section 6 at all. It is submitted that Shri Alphonso is making a new case for the department. 9. Having heard the parties and examined the record, on this limited issue, we find that there is no merit in Shri Patel's submission that Shri Alphonso is making a new case. It is a fact that Shri Alphonso has now referred to a section to which directly the Assistant Controller has not made a reference. However, it is elementary that the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o has made a reference to section 9 as well on that basis Shri Alphonso urged that the entire property has to be included. We find that unfortunately, the Assistant Controller and Shri Alphonso had overlooked the fact that under section 9 what is includible is that gift which shall not have been bona fide made two years or more before the death of the deceased. As we have stated earlier, on facts there is no dispute that the act of, throwing in the family hotchpot was much prior to two years before the death. Accordingly, we find no merit in Shri Alphonso's submission based with reference to section 27 and with reference to section 9 as well. 14. Shri Alphonso thereafter turned to the Assistant Controller's argument that the transaction is hit by section 10. It is submitted that even after throwing into family hotchpot the deceased was not wholly excluded from the possession and enjoyment of the property. 15. In reply to the above argument of Shri Alphonso, Shri Patel submits that as already held by the Supreme Court by reason of a person throwing in the family hotchpot any self-acquired property there is no gift as gift is a bilateral transaction. As such, on this issue Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this part of the controversy relies on the order of the Appellate Controller. 18. We have given anxious thought to this submission of Shri Alphonso. We find that the joint investment referred to in section 13 are manifestly not of the type now under consideration. It is unnecessary to add that section 13 as it is to be seen in the English enactment as well where the concept of coparcenary property is totally absent. On a person throwing in the family hotchpot the self-acquired property, there is no investment which that person makes jointly or he does not invest any property himself or any other person jointly but by the unilateral act he gives certain rights to other coparceners which they are in a position to exercise without reference to the person throwing in the family hotchpot the property. As such, we find no merit in Shri Alphonso's submission. 19. We have made a reference to each and every submission of Shri Alphonso but not referred to the decisions which Shri Alphonso had brought to our notice. One such decision which Shri Alphonso has brought to our notice was H.H. Iqbal Mahomad Khon, Nawab of Palanpur v. CED [1964] 53 ITR (ED) 51 (Guj.). Now, that was a case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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