JUDGMENT
1. This is an estate duty reference in which the following question has been referred for our opinion :
“Whether, on the facts and in the circumstances of the case, was the Tribunal justified in law in holding that the one-third interest of the deceased was encumbered with the maintenance charges of his wife ?”
2. We have heard learned standing counsel for the Department and Sri Vikram Gulati for the accountable person.
3. The deceased, Sri Chand Kishore expired on August 19, 1969, and a statement of account was filed by his brother, Sri Brij Kishore Gupta. Sri Chand Kishore was 37 years of age at the time of his death and the short question in this case is whether the maintenance expenditure of his wife was a valid deduction in his estate for the purpose of calculating estate duty. The Estate Duty Officer and the Assistant Commissioner decided against the assessee but in further appeal the Income-tax Appellate Tribunal was of the view that taking into consideration the young age of the widow, a sum of Rs. 10,000 should be deducted from the estate duty to maintain his wife. Hence this reference.
4. It has been held by the Andhra Pradesh High Court in the case of CED v. Smt. P. Leelavathamma [1978] 112 ITR 739 that the maintenance amount for the wife cannot ordinarily be deducted from the estate of the deceased. However, in the same decision it has been held that in view of Section 27 of the Hindu Adoptions and Maintenance Act, the widow’s claim for maintenance shall not be a charge on the estate of the deceased husband or any portion thereof, unless one has been created by the will of the deceased.
5. In the present case, it has been pointed out by Sri Gulati that the Tribunal has noticed that the deceased Sri Chand Kishore left a will in which he gave certain properties to his brother and other family members and to a small extent to his wife at his discretion. As such it was incumbent upon the Tribunal to have examined the will of the deceased Sri Chand Kishore and to have deducted the amount left by his will to his widow. Thus, while we are of opinion that the deduction of Rs. 10,000 made by the Tribunal was not correct, the Tribunal should have made a deduction of the amount bequeathed to the widow by Sri Chand Kishore in his will.
6. Hence, we set aside the order of the Tribunal, dated November 28, 1974, and remand the matter to the Tribunal to pass a fresh order after examining the will of the deceased Chand Kishore and in the light of the observations made above.