1976 (8) TMI 33

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....ich have given rise to this question are simple. Under a deed of settlement dated November 18, 1954, Srimathi Vadakapattu Annammal, wife of late Rajavelu Mudaliar, who was the owner of premises bearing door No. 267, China Bazar Road alias Nethaji Subash Chandra Bose Road, Esplanade, Madras, settled the same in favour of two beneficiaries. The first beneficiary was her own daughter, the accountable person, and the second beneficiary is the son of the first beneficiary. Under the terms of the settlement, she reserved a life interest in her own favour and after her death, the document provided, that the first beneficiary would get a life interest in the property without any power of alienation. The settlement deed further provided that after t....

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.... in the property extended to the entire income therefrom and that under section 40(a) the principal value of the property is includible in the assessment. Against this order of the Appellate Controller, the accountable person preferred an appeal to the Tribunal. The Tribunal relied on section 12 of the Estate Duty Act, 1953, and held that under that section, the property was exigible to tax. The Tribunal also pointed out that the departmental representative relied alternatively on section 5 of the Act itself, with the result the appeal preferred by the accountable person was dismissed. It is the correctness of this conclusion that is challenged before us in the form of the question referred to this court and extracted already. The first qu....

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....ounts filed by her, we are of the opinion that there is no substance in this contention. Even if an interest comes into existence on the death of Annammal, it comes into existence by virtue of the settlement only and not independent of the settlement. As a matter of fact, section 12 is a special provision. Normally, any property passing under a settlement passes from the settlor to the settlee when the settlement deed comes into effect and, therefore, the question of that property passing on the death of the settlor would not arise. However, section 12 constitutes a special provision to cover a case where under a settlement the settlor reserves a life interest to himself or herself and in such a case section 12 creates a fiction by providin....

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....the Tribunal does not show that any other contention on the basis of section 7 or with regard to the valution adopted by the authorities below was put forward. The learned counsel himself has admitted that he did not consider before the Tribunal and therefore, obviously was not in a position to assert, that any such contention was put forward and the Tribunal did not consider and deal with the same. In these circumstances, we have to proceed only on the basis of what the order of the Tribunal contained and if we so proceed the only point that was argued before the Tribunal was the exigibility to the tax and that point has been decided by the Tribunal, in our view, rightly against the assessee. The learned counsel for the assessee relied on....