CONTROLLER OF ESTATE DUTY Vs. KANHAIYALAL

JUDGEMENT

(1.) BY this reference under Section 64(1) of the E.D. Act, 1953 (hereinafter referred to as " the Act"), the Income-tax Appellate Tribunal, Indore Bench, Indore, has referred the following questions of law for the opinion of this court:

(2.) WHETHER, on the facts and circumstances of this case, the Tribunal was in law justified to hold that Smt. Kessarbai was entitled to share at the moment of the death of Mohanlal ? "

(3.) THE learned counsel for the accountable person had nothing to say regarding the applicability of the ratio of the aforesaid Full Bench decision to the present case. However, he contended that in the present case at the time of partition the deceased gave 1/3rd share to the accountable person and kept 2/3rds share with himself. THE deceased thus kept the share of his wife with him and, therefore, on his death only his 1/2 share in the property passed and the other 1/2 which belonged to his wife did not pass. THE contention cannot be upheld because before the taxing authorities it was not the case of the accountable person that at the time of the partition the deceased kept with him his wife's share also. THE Tribunal has also not based its decision on the said fact. THE Tribunal held that having regard to the provision of Section 39(1) of the Act the share of the deceased in the joint family property consisting of himself and his wife would be one-half. This view of the Tribunal is not in conformity with the ratio of the aforesaid Full Bench decision.