JUDGMENT
T.D. Sugla, J.
1. In these departmental references the Income-tax Appellate Tribunal has referred to this court the following question of law under section 64(1) of the Estate Duty Act, 1953 :
“I. Questions at the instance of Smt. C. D. Morarji, A/P. of late Shri D. R. Morarji :
(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the liability to gift-tax of Rs. 24,665 is an allowable deduction in computing the principal value of the estate of the deceased ?
(2) Whether, on the facts and in the circumstance of the case, the Tribunal was right in holding that the value of the 1/3 share of the deceased’s son in the joint family properties cannot be taken into account for the purpose of rate of estate duty ?
(3) Whether, on the facts and in the circumstances of the case, and having regard to the provision of Explanation II(i) and (ii)(e) of rule 1D of the Wealth-tax Rules, the Tribunal was right in holding that the amounts paid by way of advance tax and tax deducted at source should be deducted from the total assets while determining the value of the shares held by the deceased ?
(4) Whether, on the facts and in the circumstances of the case, the Tribunal was justified on admitting an additional ground of appeal filed by the accountable person claiming deduction on account of estate duty liability from the principal value of the estate of the deceased which was never raised by the accountable person before the Assistant Controller of Estate Duty or the Appellate Controller of Estate Duty in the course of assessment or appeal proceedings before them ?
(5) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the estate duty payable in respect of the estate of the deceased should be deducted in the computation of the principal value of the estate of the deceased ?”
II. Questions at the instance of Smt. U. D. Morarji, A/P. of late Shri D. T. Morarji :
“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the deceased, D. T. Morarji, had only 1/2 share in he joint family properties at the time of his death ?
(2) Whether, on the facts and in the circumstance s of the case and having regard to the provisions of Explanation II(i) and (ii)(e) of rule 1D of the Wealth-tax Rules, the Tribunal was right in holding that the amounts paid by way of advance tax and tax deducted at source should be deducted from the total assets while determining the value of the shares held by the deceased ?
(3) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in admitting an additional ground of appeal filed by the accountable person claiming deduction on account of estate duty liability from the principal value of the estate of the deceased which was never raised by the accountable person before the Assistant Controller of Estate Duty or the Appellate Controller of Estate Duty in the course of assessment or appeal proceedings before them ?
(4) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the estate duty payable in respect of the estate of the deceased should be deducted in the computation of the principal value of the estate of the deceased ?”
2. When the reference was called out for hearing, there was none present on behalf of the respondent-accountable persons. Dr. Balasubramanian, learned counsel for the Department, pointed out that, in view of our court’s judgment in the case of CED v. K. P. Singaporia [1990] 185 ITR 654, the first question in the case of Smt. C. D. Morarji requires to be answered in the affirmative and in favour of the accountable persons. He further pointed out that, in view of our court’s judgment in the case of CED v. Shri Ashok Kumar M Parikh [1990] 186 ITR 212, the second question in the case of Smt. C. D. Morarji requires to be answered in the negative and in favour of the Revenue. This, he said, was because there was conflict of views amongst the High Courts as to the validity of the provisions of section 34(1)(c) of the Estate Duty Act and as the Tribunal, left to itself, was not competent to consider the vires of the Estate Duty Act. Dr. Balasubramanian has then pointed out that, in view of our court’s judgment in the case of CWT v. Pratap Bhogilal [1987] 167 ITR 501, the third question in the case of Smt. C. D. Morarji and the second question in the case of Smt. U. D. Morarji require to be answered in the affirmative and in favour of the assessee and that the fifth question in the case of Smt. C. D. Morarji and the fourth question in the case of Smt. U. D. Morarji require to be answered in the negative and in favour of the Revenue in view of our court’s judgment in the case of CED v. Bipinchandra N Patel [1990] 186 ITR 29. It is stated that, in view of our answer to question No. 5 in the case of Smt. C. D. Morarji, and question No. 4 in the case of Smt. U. D. Morarji, questions Nos. 4 and 3 in the respective case had become only of academic interest and need not, therefore, be answered. All the above question are so answered.
3. This takes us to question No. 1 in the case of Smt. U. D. Morarji. Briefly stated, the relevant facts are that the deceased inherited the property in question from his father and the property was, thus, ancestral property in his hands. At the time of inherits and also at the time of death. The deceased had no son, son’s son or son’s son’s son. His family comprised himself, his wife and this unmarried daughter. The short question that arose before the estate duty authorities was whether the entire property inherited by the deceased is to be included in the computation of the principal value of his estate or whether only one-half of it is to be included on the basis of a notional partition in terms of section 6 of the Hindu Succession Act. Placing reliance on our court’s decision in Manohar Vithal Velankiwar’s case [1967] 63 ITR 379, the Estate Duty Officer held that the entire value of the property so inherited by the deceased was includible, where as the Tribunal held that, after the Hindu Succession Act came into force, the position had completely changed. According to the Tribunal, a fiction was created and, as a result of that fiction, it will be deemed that there had been a notional partition at the time of the death of the deceased and his wife being entitled to a share equal to him. The deceased’s share was taken to be one-half of the property only.
4. It is submitted before us by Dr. Balasubramanian that section 14 and/or the Explanation to section 6 of the Hindu Succession Act have no bearing on the question before us and that the Expansion applies only when a male Hindu dies having interest in joint Hindu family property. But so far as devolution of interest in coparcenary property is concerned, it is governed by section 6 itself. We do not think that it is really necessary for us to go into this question because, as laid down in article 223 of Mulla’s Hindu Law, the legal position appears to be that, if a person inherits property from his father, grandfather or great grandfather and has no son, son’s son or son’s son’s son living at the time of inheritance or thereafter, he has full right of disposal over the property. Section 6 of the Estate Duty Act clearly and categorically provides that property which the deceased was, at the time of his death, competent to dispose of shall be deemed to pass on his death. In the above view of the matter, we don not agree with the Tribunal that only one-half of the property in dispute was to be included in the estate of the deceased. Accordingly, the first question in the case of Smt. U. D. Morarji is answered in the negative and in favour of the Revenue.
4. There will be no order as to costs.