Hon'ble Bala Krishna Narayana,J.
(Dictated by Hon'ble Rajes Kumar J.) Heard Sri Sambhu Chopra learned counsel for the appellant. No one appears on behalf of the respondents. The following question has been referred: "1. Whether on the facts and in the circumstances of the case, learned Tribunal was justified in law in holding that the value of the properties of Rs. 3, 60, 201/- in net to be aggregated for rate purpose under Section 34 of the E.D. Act?
2. Whether explanation 2 to section 31 of the E.D.Act provides for total exclusion of properties from estate passing on the death and the value of property is not to be aggregated for rate purpose?
Brief facts of the case are as follows:
This reference arises out of assessment made for estate duty on the death of Smt. Kusum Kumari. Smt. Kusum Kumari died on 10.01.1980. Her husband late Shri R.C. Agarwal died on 16.10.1979 i.e. to say within a period of three months from the date of death of the husband of the deceased. On the death of her husband late Shri R. C. Agrawal, paid estate duty by computing the value of the property at Rs. 3, 60, 201/-.
In the estate duty assessment of the deceased herein, namely, Smt. Kusum Kumari, a claim was made for quick succession relief as provided for under section 31 of the E. D. Act, according to which no estate duty would become payable on the property inherited by her from her husband subject to the satisfaction of certain conditions laid down in Section 31. The Assistant Controller of Estate Duty was, however, of the opinion that total exemption in respect of those properties was not available under Section 31 of the E. D. Act and that only rebate would be admissible in respect of those properties. He aggregated those properties inherited by the deceased from her husband with the other assets of the deceased for rate purposes. Aggrieved by the inclusion of the properties of her husband for rate purposes, the accountable person preferred an appeal. The appellate authority has held that the Explanation 2 to Section 31 of the Estate Duty Act provides that if the second death took place within three months from the date of the first death, it shall be deemed to be only one death and no estate duty would become payable on the same property by reason of the second death. He therefore directed the exclusion of the entire sum of Rs. 3, 60, 201/-
Aggrieved by this order of the Appellate Controller, the Revenue filed a further appeal before the Tribunal contending that the Appellate Controller did not properly appreciate the import of Section 31 of the Estate Duty Act, which provided for relief for quick succession. The Tribunal on a consideration of the provisions of the Explanation 2 to Section 31 held that the Appellate Controller was right and that if a second death took place within a period of three months after the death of any person in respect of whose property, estate duty was paid it shall be deemed that there should be only one death and no estate duty shall again be payable on the same property by reason of the subsequent death occurring within the said period of 3 months. The Tribunal also found that estate duty was paid on the property in the hands of the husband of the present deceased. According to the Tribunal in view of the clear and unambiguous provisions in Explanation 2 to Section 31, the properties in question were not to be aggregated again even for rate purposes. In the statement of the case it has been observed that the application of aggregating the properties under sub section (2) to section 34 was neither raised before the Tribunal nor it was decided and therefore, such question does not arise from the order of the Tribunal. However even after observing the aforesaid the tribunal has referred question no. 1. It appears that the reference of the question no. 1 has been made inadvertently. This question does not arise from the order of the Tribunal in as much as the question of applicability of sub section 2 to Section 34 of the Estate Duty Act has neither been raised nor been considered. So far as the question no. 2 is concerned the Tribunal has recorded the following findings:
"After hearing the learned Departmental Representative and going through the provisions of the Act, we find that the view taken by the Appellate Controller is absolutely correct. Section 31 of the Estate Duty Act provided for allowance for quick succession to property."
We do not find any error in the order of the tribunal. Admittedly Smt. Kusum Kumari died on 10.01.1980 within three months from the date of death of her husband R.C. Agarwal who died on 16.10.1979, therefore, explanation 2 to Section 31 is applicable, which reads as follows:
" Explanation 2. - In computing any period for the purpose of this Section, deaths occuring within a period of three months after the death of any person in respect of whose property estate duty has become payable, shall be treated as one death, and no estate duty shall again be payable on the same property, by reason of the subsequent deaths occurring within the said period of three months."
As per the explanation 2 of Section 31, in case of death within a period of three months after the death of any person in respect of whose property estate duty has become payable, shall be treated as one death, and no estate duty shall again be payable on the same property, by reason of the subsequent deaths occurring within the said period of three months. Tribunal has recorded a categorical finding that the estate duty has been paid on the impugned property in case of her husband Sri R. C. Agarwal, therefore, we are of the view that the explanation 2 to section 31, no estate duty is payable on same property again.
In view of the above, question no. 1 since not arises from the order of the tribunal, remain unanswered and question no. 2 is answered in affirmative in favour of the assessee and against the department.
Order Date :- 4.1.2010 YK