CONTROLLER OF ESTATE DUTY Vs. SAILENDRA NATH DE

JUDGEMENT

(1.) THIS reference under s. 64 (1) of the ED Act, 1953 ('the Act') has been made by the Tribunal at the instance of the Revenue.

(2.) BRIEFLY stated, the facts are that the deceased who died on 30th Aug., 1974 was the owner of a house property at 73A, Ganesh Chandra Avenue, Calcutta. In respect of this property, he had executed a settlement deed on 27th March, 1953 in which he had declared that the top floor in the six stored building or fifth floor should not be given on tenancy and should be reserved for the residence of his wife, two sons and unmarried daughter. According to the Asstt. CED, the deceased himself used to reside in the said premises free of rent with his family members and expired there. He was also maintaining his Chamber for practice in the ground floor. Further, the deed was executed before the enactment of Act. Therefore, s. 12 of the Act came into operation. The Asstt. CED discussed the provisions of that section at length and also referring to Chamber's Twentieth Century Dictionary for the purpose of explaining the word 'residence', he was of the opinion that the value of the entire settled property was includible in his net principal value.

(3.) AGGRIEVED , the assessee went up in appeal before the CED (A) . The CED (A) referred to the Gujarat High Court decision in the case of Kikabhai Samsuddin vs. CED (1969) 73 ITR 241 (Guj) and held that the benefit reserved was not referable to any specified part or portion of the property but the entire property was subject to a charge for the payment of the sums to the deceased's wife and unmarried daughter and, thus, the property would pass under s. 10 of the Act and not under s.12 as held by the Asstt. CED. The CED (A) further held that the case of R. Kanakasabai vs. CED (1969) 74 ITR 429 (Mad) and others is different from the facts of the present case. In that case the Supreme Court has held that the property does not pass under s. 10 as the benefit to the donor by contract or otherwise is not referable to the gifted property and the provision for annual payment and maintenance was not charged on the property settled. In the present case, the provision for payment to the wife and the unmarried daughter has been made a charge on the gifted properties and, therefore, even according to the Supreme Court decision in the case of R. Kanakasabai (supra) , the properties would pass under s. 10.