TaxTMI 
TaxTMI 
1969 (5) TMI 10
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.... the settlor used to reside. The trustees were directed to pay the rates and taxes and out of the balance of the income of the property they were to pay in any proportion whatsoever to Smt. Jotirmoyee Ray, the settlor's wife, Sunil Roy, the settlor's son, Uma Mitra, the settlor's daughter, any children of Sunil Roy and any children of Uma Mitra by her existing marriage. None of these beneficiaries had any power of anticipation. At the end of a period of ten years, the trustees were to transfer the property to Sunil Roy or to any major child of Sunil Roy or to Uma Mitra or to Uma Mitra's children born of her by the then existing marriage. In the absence of any of the beneficiaries aforementioned property was to go to the Sadharan Brahmo Sama....
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.... May, 1955, created what would appear to be a deed of trust and that he executed the deed " himself knowing and also the persons in whose favour the deed was so executed knowing it to be an out and out benami transaction with the view of avoiding payment of estate duty. " He stated in this document of the 8th May, 1959, that he never divested himself of his proprietary interest and actual physical possession and that he had at all times been and was still living in premises No. 38, Southern Avenue, in his own right as the exclusive owner thereof with his wife, daughter and son-in-law. He stated that he cancelled and determined the transfer by way of benami, i.e., the trust created by the indenture, dated the 1st May, 1955. It was stated fur....
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....roller of Estate Duty, Eastern Zone, Calcutta, has stated : " In my opinion the document dated 8th May, 1959, is only an evidence of the anger displayed by the father as a result of the various family quarrels which culminated in the filing of a criminal complaint by his, son, Sunil Roy, on 4th July, 1958, against the husband of his sister, i.e., the son-in-law of the deceased. It is not necessary to recapitulate the entire course of the history of the litigation between the brother and the sister which has taken them to the Alipur Court and, the Appellate Court, to the District Judge and later on to the Calcutta High Court also. The position as it appears to me is that in his anger the father attempted to execute a document seeking a de....
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....ngs, however, the Assistant Controller of Estate Duty held that the property gifted to the son, was enjoyed by the deceased right upto the date of his death inasmuch as he seemed to have lived and died in that place. The Assistant Controller was of opinion that the property had passed under section 10 of the Estate Duty Act, 1953. The Appellate Controller's verdict was in favour the applicant. The Tribunal, however, came to the following findings : (1) It is not proper to proceed on the assumption that the several provisions in the Estate Duty Act dealt with mutually exclusive situations ; (2) The Appellate Controller is not correct in proceeding on the assumption that section 10 is excluded from the present case merely because the....
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....the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise... " The Supreme Court in George Da Costa v. Controller of Estate Duty has construed these provisions. Their Lordships are of the view that the crux of section 10 lies in two parts : (1) The donee must bona fide have assumed possession and enjoyment of the property, which is the subject-matter of the gift to the exclusion of the donor, immediately upon the gift, and (2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him by contract or otherwise.....
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....be said that he was " entirely excluded from possession and enjoyment " within the meaning of the first limb of the section and, therefore, the property would be deemed to have passed on the death of the donor and will be subject to levy of estate duty. Learned counsel for the department submitted to us that this was a fit case for applying the first part of section 10. We cannot uphold this contention in the face of the overwhelming evidence on record which we have already discussed. In this case the donee had assumed possession of the property immediately after the gift, the donee had also retained possession and enjoyment throughout. No benefit had been conferred on the donor by contract or otherwise, as explained by the Supreme Co....