Per Shri S.K Yadav, JM -This appeal is preferred by the Accountable Person against the order of the Appellate Controller of Estate Duty dated 17th June, 1994.

2. This appeal was heard by the Tribunal and was decided vide its order dated 8-5-1996. Subsequently, the Accountable Person moved an application for recalling the order of the Tribunal on the ground that the relevant authorities quoted by him were not considered by the Tribunal while adjudicating the issue in dispute. The application was decided by the Tribunal’s order dated 9th August, 1996 whereby the earlier urder of the Tribunal was recalled and the appeal was fixed for fresh hearing. The appeal was heard by the Tribunal on 4-3-1997.

3. Briefly stated, the facts of the case are that one Shri Lakhmichand was Karta of the HUF. The family consisted of Shri Lakhmich and as Karta, his wife Smt. Kanchanbai and their son Parasmal. Shri Lakhmichand expired in the year 1964 but the HUF continued even after the death of Shri Lakhmichand. Subsequently, Smt. Kanchanbai died on 4-3-1977. At the time of her death, the family consisted of Smt. Kanchanbai, her son Parsarnal who was the Karta of the family, Smt. Suganbai wife of Parasmal and master Pankaj, minor son of Parasmal. The account of the estate of late Kanchanbai was filed by Parasmal. In this statement 50 per cent of the HUF property was shown as passing on the death of Smt. Kanchanbai under protest on the ground that the deceased was entitled to half share in the HUF properties in case of partition but since no such partition took place during her lifetime, no property can be said to have passed on her death. As such, no part of the HUF property is includible in the principal value of the estate of the deceased for the purpose of estate duty. The contention of the AP was not accepted by the Assessing Officer and he had concluded that in the notional partition at the time of death of Shri Lakhmichand, Smt. Kanchanbai acquired 1/3rd share in the HUF property. He also held that out of 1 /3rd share of her husband she would get 50 per cent share and the remaining 50 per cent share would go to Parasmal. Thus, the conclusion was arrived at that Smt. Kanchanbai had half share in the HUF property at the time of her death which was to be treated as passing on her death. Thus, half share in the HUF property was brought to tax. The AP filed an appeal before the Appellate Controller of Estate Duty. It was argued before the Appellate Controller of Estate Duty that as per the provisions contained in section 6 of the Hindu Succession Act, 1956, 1/3rd share of Lakhmichand was devolved upon Smt. Kanchanbai and her son Shri Parasmal in equal shares and the remaining 2/3rd share remained with the family as no partition was claimed by either of the remaining members. It was also argued that since actual partition did not take place at the time of death of Shri Lakhmichand, the notional partition gets nullified. It was also argued that Smt. Kanchanbai was only a member of the joint Hindu undivided family but she was not a coparcener and, therefore, the provisions of sections 7 and 34(1)(c) of the Estate Duty Act are not applicable. Henceforth only 1/6th share should have been included in the principal value of the estate of the deceased and not half share. The submissions of the AP did not find favour with the Appellate Controller and the appeal was dismissed. Aggrieved, the assessee carried the matter before us.

4. The learned counsel for the assessee, Mr. S.C. Goyal, has submitted that at the time of death of Shri Lakhmichand, by virtue of Explanation 1 to section 6 of Hindu Succession Act, 1956, 1/3rd share of late Shri Lakhmichand goes out of the family and devolves upon the deceased, Smt. Kanchanbai and her son’, Shri Parasmal in equal shares. The remaining 2/3 rd share of HUF remains with the family consisting of Parasmal as Karta, his son and the deceased. Since the deceased, Smt. Kanchanbai, did not claim partition at the time of de