- (1.) THE Tribunal has referred the following question of law arising out of its order dt. 10th Feb., 1983 : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the share of lineal descendants in the self-occupied property was liable to be excluded from the principal estate of the assessee for rate purposes under s. 34(1)(c) of the ED Act, 1953 ?"
(2.) THE brief facts of the case are that the deceased had one-fifth share in the immovable property belonging to HUF of which he was Karta. He was survived by his wife and three sons. All the sons stayed outside in connection with either employment or profession. THE value of the house, after adjustment of the loan, was taken at Rs. 1,60,000. THE property was partly self-occupied and partly let out. THE share of the lineal descendants was taken at Rs. 60,000 in the let out portion and at Rs. 36,000 in the self occupied portion and both the amounts were included for the rate purposes in view of s. 34(1)(c) of the ED Act. On appeal, the ACED excluded the sum of Rs. 36,000 representing the share of lineal descendants in the self occupied portion, following the decision of the Andhra Pradesh High Court in the case of CED vs. Estate of Late Durga Prasad Beharilal (1979) 116 ITR 692 (AP). THE order of the ACED was accepted by the Tribunal and it was observed that the self occupied portion which was used by the deceased was exempt. Except the deceased and his family, no stranger lived in the self occupied portion. THE part of the house exclusively remained in the occupation of the deceased, therefore, was fully exempt under s. 33(1)(n) r/w cl. (c) has no application to such portion. This matter was considered by this Court in the case of CED vs. Nirmala Saxena D.B. ED Ref. No. 112/83 decided on 4th Jan., 1995 [since reported at (1995) 126 CTR (Raj) 1]. It was observed by this Court as under : "In view of the various decisions referred above and on the basis of the language used in s. 33(1) (n) we are of the opinion that the exemption is available only in respect of the property which belongs to the deceased and which passes on his death. The Hindu undivided property in which lineal descendants have any interest cannot be said to be entirely belonging to the deceased, it is only the share of the deceased to the extent which passed on his death which is exempt. It is his share alone which passes on his death and therefore, the exemption contemplated in s. 33(1)(n) is restricted to the share of the deceased. Under s. 34(1)(c) the value of the lineal descendants of the deceased in the coparcenary property has to be aggregated with the principal value of the estate of the deceased for the purposes of rate of duty. In view of the specific language of sub-s. (c) of s. 34(1) validity of which has already been upheld by the apex Court, the interest of lineal descendant is liable to be included and, therefore, we are of the view that Tribunal was not justified in holding that the share of lineal descendants in coparcenary property was not includible in the principal estate of the deceased for rate purpose under s. 34(1)(c)." Following the above decision we are of the opinion that the Tribunal was not justified in holding that the share of the deceased (lineal descendants ?) in the self occupied portion was liable to be excluded for rate purposes under s. 34(1)(c) of the ED Act. Accordingly the reference is answered in favour of the Revenue and against the assessee. No order as to costs.;