BHARGAVA, J. - (1.)THIS is an application under s. 64(3) of the ED Act, 1953 (hereinafter referred to as "the Act"), requesting this Court for directing the Tribunal, Jaipur Bench, to state the case and refer the following questions of law arising out of its order dt. 21st May, 1980:
"1. Whether on the proper interpretation and construction of the phrase 'property passing on the death' under s. 2(16) of the Estate Duty Act, 1953, the property which has not actually been received by the accountable person or anyone else, shall be deemed to be the property passing on the death of the deceased by any fiction of law ? 2. Whether on the proper interpretation of the provisions of the ED Act, there could be any charge and liability of payment of duty under s. 5 of the Act, on the accountable person in respect of alleged property which has neither been received by him or anyone else and which was not in existence at the time of death of the deceased ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in fixing the burden on the accountable person in respect of cash and jewellery which was never received by him and of explaining as to what the deceased did with the cash and jewellery which, according to the panchnama, was not found to exist at the time of the death of the deceased ? 4. Whether, on the facts and in the circumstances of the case, the finding of the Tribunal is supported by evidence and material on record and is not perverse or unreasonable ? 5. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that cash amounting to Rs. 77,692 and jewellery of the estimated value of Rs. 3,30,168 passed on the death of the deceased and not cash amounting to Rs. 24,527 and jewellery worth Rs. 10, 151 as claimed by the accountable person on the basis of the panchnama, when the veracity of the panchnama has not been challenged ? 6. Whether on the proper interpretation of the provisions of the Estate Duty Act, the principles of valuation of immovable properties and the established law on the point, the Tribunal was justified in law in rejecting the claim of the accountable person that for the valuation of immovable property, the yield capitalisation or rental method should be adopted when the entire property including the land is let out on rent ?"

(2.)THE petitioner is the legal heir of late Smt. Raj Dadiji Jodhiji of Sikar, who expired on 6th Jan., 1977, after a long illness. THE petitioner was at Nepal for about four months due to indisposition of his wife and was not present in Sikar at the time of the death of Smt. Raj Dadiji Jodhiji on 6th Jan., 1977. One Lal Singh, in-charge of Janani Deodhi, sealed the property left by late Smt. Raj Dadiji Jodhiji and prepared a memo on the same night which is signed by four responsible persons. Seals were put inthe presence of the motbirs on the locks which were already affixed and the key of the room and the safe was kept by Lal Singh. THE said seals were broken and locks were opened on 8th Jan., 1977, in the presence of the following persons :
1 . Thakur Shri Goverdhan Singh, s/o Shri Bhawani Singh, MLA, 2 . Shah Din Dayalji Biyani, s/o Shri Goverdhanlal Biyani, 3. Col. Hanuman Singhji, s/o Shri Dal Singhji, 4. Thakur Shri Girdhari Singhji, s/o Shri Partap Singhji, 5. Shri Ladu Singhji, s/o Shri Govind Singhji,
and a Panchnama was also prepared. THE petitioner then received a sum of Rs. 24,527 in cash and jewellery and gold coins of the value of Rs. 10,151. THE petitioner being an accountable person under s. 54 of the Act submitted a return of estate duty in which the movable and immovable property, as received by the petitioner, was declared. THE Estate Duty Officer, by his assessment order dt. 18th April, 1979, did not accept the case of the petitioner, but enhanced the cash to Rs. 77,692 in place of Rs. 24,527 actually received by the petitioner and also enhanced the value of the jewellery to Rs. 3,30,168 instead of Rs. 10,151 actually received by the petitioner. He also did not accept the contention of the petitioner that the value of the immovable property, which was entirely on rent, should have been taken at Rs. 37,400, but the same was enhanced to Rs. 77,000. THE petitioner preferred an appeal to the Appellate CED, which was rejected by order dt. 10th Jan., 1980. THE assessee being aggrieved by the aforesaid order preferred a further appeal before the Tribunal which was also rejected by order dt. 21st May, 1980. THE petitioner then submitted a reference application under s. 64(1) of the Act before the Tribunal to refer the above questions to the High Court for its opinion. But the said application was also rejected by the Tribunal by its order dt. 15th April, 1981. Hence, the petitioner has filed the present application before this Court under s. 64(3) of the Act and has prayed that the Tribunal be directed to state the case and refer the questions of law, mentioned above, as arising out of its order dt. 21st May, 1980, for the opinion of the High Court.
We have heard Shri V. K. Singhal, the learned counsel for the petitioner as well as Shri R. N.Surolia, the learned counsel for the Department.

The learned counsel for the petitioner has submitted that the petitioner being an accountable person is liable to pay estate duty only on the property passing on the death of the deceased which he actually receives and not as per the WT return of the deceased person. The accountable person is not liable to pay estate duty on the property which he never actually received on the death of the deceased, though, according to the wealth-tax return of the deceased, such property belonged to the deceased and the burden to prove that the accountable person actually received the property on which he has to pay estate duty is on the Department and also the value of the immovable property should be determined only on rent capitalisation basis. It is an admitted fact that the petitioner was not present in Sikar at the time of the death of Smt. Raj Dadiji Jodhiji of Sikar and he was away in Nepal for the last more than four months. The claim of the petitioner before the authority was that he actually received cash amounting to Rs. 24,525, though according to the account books, the cash in hand of the deceased was Rs. 77,692. The Department did not accept the contention of the petitioner and rejected the same because the panchnama was not drawn up in the presence of any Government authority and, therefore, he did not rely on the panchnama. In our opinion, this aspect of the matter deserves consideration and a question of law does arise whether in such circumstances the view taken by the concerned authorities was just and proper.

The second aspect of the matter is, on whom the burden lies to adduce evidence in that connection. The account books were maintained by one Shri Murlidhar. According to the petitioner, he never handled the cash, but used to write account books on the basis of the slips received from the Janana through the maid-servant. Murlidhar has not been examined during the assessment year either by the petitioner or by the Department. He was the best person to have deposed in this connection. Similarly, the Department has rejected the contention of the petitioner with regard to the jewellery. The deceased used to file WT returns which showed the jewellery and gold coins in her possession, but for the asst. yr. 1975-76, the assessee had declared the value of the jewellery and gold coins as nil on the plea that these articles appeared to have been taken away or stolen by someone in the house. But the WTO did not believe the contention of the deceased as she had not filed any complaint with the police and it cannot be believed that even FIR will not be lodged after the loss of such huge quantity of jewellery and ornaments on the ground that it was not done for the sake of dignity of the house. Therefore, the WTO assessed the deceased as if she was in possession of the jewellery and ornaments in the earlier years. The said order of the WTO was confirmed in appeal by the Appellate Asstt. Comms. and the contention of the petitioner that he did not receive the jewellery as mentioned in the WT return filed by the assessee was rejected as also the evidence regarding the panchnama.

The deceased owned an immovable property known as Vikram Bhawan. The accountable person must declare the value of the property in the statement of accounts at Rs. 70,000. It was only during the assessment proceedings before the Assistant CED that the petitioner claimed that since the property was let out its value should be determined on rent capitalisation method which comes to Rs. 37,400. The property had been valued by the approved valuer at Rs. 70,000 as on 1st April, 1973, and it was also shown in the wealth-tax assessment. Even in the land and building tax assessment for the asst. yrs. 1973-74 and 1974-75, the property was shown at Rs. 70,000. The Asstt. CED estimated the value as on the date of death (i.e., 6th Jan., 1977) at Rs. 77,000 and the same was sustained by the Appellate CED as well as the Tribunal. Only 35per cent of the total land is covered and has been let out on rent whereas 65per cent of the plot of land is uncovered and the value of immovable property has been constantly rising. It was Rs. 70,000 as per the wealth tax assessment and the land and building tax assessment.

(3.)THE learned counsel for the petitioner submitted that the burden was on the Department to prove that at the time of the death of the deceased, he was in possession of jewellery and cash as shown in the WT return and it is not for the accountable person to explain as to what has happened to the jewellery shown in the wealth statement of the deceased and placed reliance on Veerabhadrappa Chigateri vs. CED (1970) 77 ITR 666 (Mys) and Smt. Shantiabai Jadhav vs. CED (1964) 51 ITR (ED) I (AP). THE learned counsel for the petitioner further submitted that the Department never asked for cross-examining the witnesses who were present at the time of sealing or when it was opened and the cash and jewellery were handed over and delivered to the petitioner and no inquiry was made by the Department in that connection. THErefore, the Department should not have discarded the two panchnamas merely on suspicion and conjecture and relied on Sheo Narain Duli Chand vs. CIT (1969) 72 ITR 766 (All). He has further submitted that even a finding on a question of fact can be assailed in the High Court if there is no evidence to support it or if the finding is perverse and as there is no evidence to support the decision arrived at by the Department and since it is perverse, it does raise a question of law and the High Court should direct the Tribunal to refer the question of law as mentioned above. In this connection, he placed reliance on CIT vs. Daulatram Rawatmull (1964) 53 ITR 574 (SC) and CIT vs. S. P. Jain 1972 CTR (SC) 443 : (1973) 87 ITR 370 (SC) and also on CIT vs. Daulat Rain Rawatmull 1972 CTR (SC) 441 : (1973) 87 ITR 349 (SC), Fakhri Automobiles vs. CIT (1979) CTR (Raj) 192 : (1980) 126 ITR 417 (Raj) and CIT vs. Golcha Properties (P.) Ltd. (In liquidation) (1980) 126 ITR 809 (Raj).
Lastly, he has submitted that this is only a stage of calling a reference and, therefore, the High Court need not go into the correctness of the submissions made by the petitioner. The Tribunal should be asked to refer the questions if they really arise out of the order irrespective of the fact whether the contentions and submissions made by the petitioner are valid and correct, or not or whether the petitioner will ultimately succeed or not.

We have given our serious thought to the whole matter and have also carefully gone through the various orders. In our opinion, questions of law do arise out of the order of the Tribunal dt. 21st May, 1980. We, therefore, direct the Tribunal, Jaipur Bench, Jaipur, to state the case and refer the following questions:

"1. Whether on the proper interpretation and construction of the phrase 'property passing on the death' under s. 2(16) of the Estate Duty Act, 1953, the property which has not actually been received by the accountable person or anyone else, shall be deemed to be the property passing on the death of the deceased by any fiction of law? 2. Whether on the proper interpretation of the provisions of the ED Act, there could be any charge and liability for payment of duty under s. 5 of the Act, on the accountable person in respect of alleged property which has neither been received by him or anyone else and which was not in existence at the time of death of the deceased ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in fixing the burden on the accountable person in respect of cash and jewellery which was never received by him and of explaining as to what the deceased did with the cash and jewellery which, according to the panchnama, was not found to exist at the time of death of the deceased ? 4. Whether, on the facts and circumstances of the case, the finding of the Tribunal is supported by evidence and material on record and is not perverse or unreasonable ? 5. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that cash amounting to Rs. 77,692 and jewellery of the estimated value of Rs. 3,30,168 passed on the death of the deceased and not cash amounting to Rs. 24,527 and jewellery worth Rs. 10,151 as claimed by the accountable person on the basis of the panchnama, when the veracity of the panchnama has not been challenged ?"
for the opinion of this Court.