ASHA RANI Vs. CONTROLLER OF ESTATE DUTY

JUDGEMENT

(1.) The ticklish question of law reproduced below, which has been referred to us at the instance of the assessee by the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar (hereinafter referred to as "the Tribunal") under Section 64(1) of the Estate Duty Act, 1953 (hereinafter referred to as "the Act"), has evoked divergent and diametrically different views from different High Courts of the country :

(2.) One Telu Ram, the sole surviving coparcener, who constituted a Hindu undivided family (hereinafter referred to as "Hindu undivided family") with his wife, died on January 27, 1977. The wife, being the accountable person, after issuance of statutory notice, filed the estate duty return contending that the properties, both movable and immovable, were ancestral and the deceased who was governed by the Mitakshara school of Hindu law constituted a Hindu undivided family with his wife. It was claimed that half portion of the properties belonged to her and, therefore, only half of the Hindu undivided family properties should be included in the estate passing on the death of the deceased. The Assistant Controller of Estate Duty found that the deceased was the sole surviving coparcener at the time of his death. He was competent to dispose of the whole of the properties. The wife was entitled to claim maintenance only and could not claim partition of the Hindu undivided family properties. The Assistant Controller of Estate Duty held that the whole of the properties passed on the death of the deceased and, therefore, included the entire estate of the deceased for levy of the estate duty.

(3.) The accountable person carried an appeal to the Controller of Estate Duty (Appeals) who agreed with the conclusions of the Assistant Controller of Estate Duty. It was held that the deceased, being the sole surviving coparcener, had the right to dispose of the properties within the meaning of Section 6 of the Act. The wife could not claim partition and the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act of 1956"), could not be helpful in determining the question of power of disposal of the properties by the sole surviving coparcener. The appeal was dismissed.