CONTROLLER OF ESTATE DUTY Vs. PRAKASHCHAND

JUDGEMENT

(1.) BY this application under Section 64(1) of the E.D. Act, 1953 (hereinafter referred to as "the Act"), the following question of law has been referred to this court for its opinion :

(2.) THE material facts giving rise to this reference briefly are as follows:

(3.) AS provided by Section 39 of the Act there would be notional partition, i.e., a partition immediately before the death of the deceased. The result of such partition would be that the wife and the three sons of the deceased would along with the deceased be entitled to a share. The wives of the sons would not be entitled to any share in such partition. Therefore, the interest of the lineal descendants in the HUF property as provided by Section 34(1)(c) of the Act would be 3/5ths and not 39.51%,as computed by the Tribunal. The Tribunal has relied on the decision reported in Satyanarayan Saraf v. ASst. Controller [1978] 111 ITR 432 (Cal). It has been held in that case that in order to ascertain the shares of the lineal descendants of the deceased a notional partition of the smaller HUF consisting of the son of the deceased and the wife and sons of that son was also contemplated. With respect, we find ourselves unable to agree with that view. The notional partition as contemplated by Section 39 of the Act is between the deceased and other members of the HUF who are entitled to a share in the joint family property if a partition were to take place in the lifetime of the deceased. The wife of the son of the deceased cannot be brought into the picture at that stage. What has to be aggregated by virtue of the provisions of Section 34(1)(c) of the Act is the interest of the lineal descendants on a notional partition in the joint family as provided by Section 39 of the Act.