SENGUPTA, J. - (1.) IN this reference under S. 64(1) of the ED Act, 1953, the following question of law has been referred to this Court: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the deceased was enjoying possessory as well as legal right over the property on the basis of the agreement and that the Asstt. Controller could not have rectified his order under S. 61 of the ED Act, 1953?"
(2.) SHORTLY stated, the facts are that the deceased K.K. Malaih died on 11th Feb., 1980. The Asstt. CED in his original order computed the value of the dutiable estate of the deceased at Rs..3,16,919 which included Rs.1 lakh, being the value of a residential house. The deceased was a licensee in the said house property and entered into an agreement for purchase of a portion of the same for Rs.1 lakh. A sum of Rs.90,000 was paid and the balance of Rs..10,000 was to be paid at the time of registration. However deduction under S. 33(1)(n) of the Act was allowed by the Asstt. CED in respect of the value of the said house property. Subsequently the Asstt. CED passed an order under S. 61 of the Act treating the sum of Rs.90,000 as an advance made by the deceased as on the date of death and withdrew the deduction allowed under S. 33(1)(n). On appeal, the Appellate CED confirmed the order of the Asstt. CED. On further appeal the Tribunal set aside the orders of the lower authorities stating that the law on this point was not settled and as it was a debatable point, the Asstt. CED could not rectify his order under S. 61 of the Act.
(3.) NONE appeared on behalf of the assessee. At our request, Mr.R.N. Bajoria, the learned counsel, has assisted this Court and this Court records its appreciation for the assistance rendered by him.;