CONTROLLER OF ESTATE DUTY Vs. SHYAM SUNDER JHUNJHUNUWALA

JUDGEMENT

(1.) THE Tribunal, A Bench, Allahabad had referred the following question for opinion of this Court--

(2.) GAJANAND Jhunjhunwala died on 18th May, 1959. Apart form other properties he owned 340 acres of agricultural land in U. P. and 50 acres in Bhiar. At the time of his death he left behind two sons, who filed an account of the estate of the deceased. A dispute arose before the Asst. Controller as to whether the land belonged to the deceased as Karta of a HUF or it was owned by him in his individual capacity. The Asst. CED relying on report of the Tahsildar Hatta, District Deoria, and the Anchal Adhikari, Bagaha-1, Champaran (Bihar) held that the land was owned by the deceased in his individual capacity, as his name alone was shown in the revenue records as the owner of the land. The appeal filed by the accountable person against this order failed. The matter then came up before the Tribunal. The Tribunal referred to an order passed under S. 25 of the IT Act, 1922, of the ITO, Gorakhpur on 30th Aug., 1937 by which he accepted the partition of Zamindari and other properties between Gajanand and his three brothers, and the fact that in the assessment of estate duty of Madan Lal one of the brothers, it was held that Madan Lal owned the agricultural land received by him on partition as Karta of a HUF, and not in his individual capacity. Taking these facts into consideration it held that as the land which had been received by the deceased was ancestral property, the deceased had only one-third share in the land, the remaining being that of his two sons, in doing so it followed the decision of the Court in the case of Ram Chander & Ors. vs. Commr. and Director of Consolidation, Meerut (1977) CTR (SC) 253 : (1977) 107 ITR 922).

(3.) SO far as the land in Bihar is concerned the question as to whether the deceased owned the land in his individual capacity or the sons also had a share in the land would depend upon the provisions of the Tenancy Act as prevailing in the State of Bihar before the abolition of Zamindari in that State, and the provisions of the Bhiar Zamindari Abolition Act. The Tribunal having without examining the provisions of those Acts, applied the decision of Ram Chander 's case (supra) to land held by the deceased in Bihar. This could not be done, as there is nothing on the record to indicate that the Tenancy Acts of the State of U. P. and State of Bihar are in pari materia.