1. These two appeals pertain to the estate duty proceedings arising out of the death of Shri P.G. Mehta. There are number of grounds in these appeals but the point that was referred to the Special Bench reads as follows : Whether in the case of coparcenary interest in joint family property constitutes property passing on the death of coparcener, the interest of the lineal descendants of the deceased can be aggregated under Section 34(1)(c) of the Estate Duty Act, 1953 to determine the rate of duty.
The deceased was the karta of a HUF, which comprised of his three sons and his wife. Therefore, the Assistant Controller brought to tax one-fifth share of the deceased which would have been allotted to him if there had been partition before his death. He also included 3/5th share of his sons (i.e., lineal descendants) for rate purposes.
3. The accountable person challenged this order before the Appellate Controller contending that the shares of the lineal descendants could not be aggregated for rate purposes. The AAC followed the decisions of the Pradesh, Kerala, Punjab and the Allahabad High Courts and rejected this contention. When the matter came in appeal before the Tribunal, the Bench, hearing the appeals, noticed some decisions of the Tribunal on the question of aggregation of the interest of the lineal descendants under Section 34(1)(c) of the Estate Duty Act, 1953 ('the Act') in which it was held that the interest of the lineal descendants could not be aggregated for rate purposes. Since the Bench did not agree with that conclusion, the matter was referred to the President for constituting a larger Bench and that is how the matter has come up before us.
4. We have heard the learned counsel for the assessee and also the learned departmental representative. The first point argued was regarding the constitutional validity of the provisions of Section 34(1)(c). The only rulings, which have held that provisions are violative of the Constitution are the Madras High Court ruling in V.Devaki Ammal v. ACED [1973] 91 ITR 24, which has been subsequently followed by the same High Court in CED v. R.K. Chettiar [1980] 125 ITR 605. In fact, before the first ruling of the Madras High Court (supra), there was an earlier ruling of the same High Court which had upheld the constitutional validity of the said provisions in PL. S. RM. Ramanathan Chettiar v. ACED [1970] 76 ITR 402 (Mad.). Thereafter, however, different High Courts in the country have held that the provisions of Section 34(1)(c) are not violative of the Constitution. We may refer in this regard to the Andhra Pradesh High Court ruling in the case of N.Krishna Prasad v. ACED [1972] 86 ITR 332 and the same High Court in N.V. Somaraju v. Government of India [1974] 97 ITR 97, the Kerala High Court ruling in T.R. Jayasankar v. ACED [1972] 83 ITR 445, the Punjab and Haryana High Court in Hari Ram v. ACED [1975] 101 ITR 539, the Allahabad High Court in Badri Vishal Tandon v. ACED [1976] 103 ITR 468, the Madhya Pradesh High Court in Smt. Gunvantibai v. CED [1981] 130 ITR 122, the Patna High Court in Rameshwarlal Agarwal v. Union of India [1982] 133 ITR 545, the Gujarat High Court in Ramniklal J. Daftary v.CED [1982] 136 ITR 422 and, lastly the Karnataka High Court in Smt.
Sirigeri Thippamma v. ACED have all held that the said provisions do not violate the Constitution and are, therefore, valid piece of legislation.
That being the position, the learned counsel for the accountable person did not seriously contend that the provisions of Section 34(1)(c) violate the Constitution and should not, therefore, be given effect to.
Looking to the overwhelming consensus of the judicial opinion by the majority of the High Courts referred to above, it cannot be assumed that the provisions of Section 34(1)(c) are ultra vires the Constitution. Besides, the Tribunal is not competent to consider the vires of the provisions of this Act.
5. The next argument of the learned counsel for the accountable person is that although Section 34(1)(c) directs aggregation of interest of the lineal descendants for rate purposes, the said provision does not say that the interest of the lineal descendants passes on the death.
However, the contention was that there was no provision as to how the interest of the lineal descendants had to be computed. The contention was that Section 39(1) of the Act only provided for the method by which the value of the benefit accruing or arising from the cessor of the coparcenary interest in the joint family property owned by the Mitakshara School of Hindu law had to be computed and that this provision applied only to the deceased member of the coparcenary but it made no provision as to how the interest of the lineal descendants had to be worked out. There being no such provision in the Act, the provision for aggregation becomes unworkable. That being the position, even though the provisions of Section 34(1 )(c) are constitutionally valid, they cannot be given effect to.
6. The learned departmental representative, on the other hand, contended that once the procedure for determining interest of the deceased coparcener was provided in Section 39(1), in the same proceedings in which the interest of the deceased coparcener was determined, the interest of the lineal descendants would also be determined by deeming a partition of the family property immediately before the death. It was contended that it was not necessary to make any separate provision for determining the share of the lineal descendants because once the partition was deemed to have taken place before the death of the deceased, the shares of all the members of the family would get determined in the same process.
7. We have considered the arguments, in our opinion, the contention of the learned counsel for the accountable person that there is no procedure prescribed for determining the shares of the lineal descendants and, therefore, the provisions ofS 34(1)(c) are unworkable, cannot be accepted as correct. The decision of the Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 is of considerable assistance for resolving the point raised by the learned counsel. The head note in that case reads as follows: In order to ascertain the share of the heirs in the property of a deceased coparcener of an HUF it is necessary, in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone, can one determine the extent of the heir's share. Explanation 1 to Section 6 of the Hindu Succession Act, 1956, resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made, that a partition had in fact taken place, must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a procedural step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled, just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. This interpretation of the provisions of Section 6 of the Act will further the legislative intent in regard to the enlargement of the share of female heirs qualitatively as well as quantitatively.
Therefore, the widow's share in coparcenary property must be ascertained by adding the share to which she would be entitled at a notional partition immediately before her husband's death and the share which she would get in her husband's interest upon his death.
(p. 440) 8. The provisions of Section 6 (Explanation 1) of the Hindu Succession Act, 1956 which fell for interpretation before the Supreme Court in the above ruling, read as follows : Explanation 1.-For the purposes of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(1) The value of the benefit accruing or arising from the cessor of a coparcenary interest in any joint family property governed by the Mitakshara School of Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death.
10. These provisions are, more or less, in pari materia. Both envisage a partition immediately before the death, one, i.e., Section 39(1) for determining the interest of the deceased for the purposes of estate duty and the other, i.e., Explanation 1 to Section 6 for determining the interest of the deceased for the purpose of succession. The interpretation of these provisions has, therefore, to be as per the decision of the Supreme Court in Gurupad Khandappa Magdum's case (supra). Therefore, to determine the interest of the deceased under Section 39(1), one has to assume the complete partition of the family property, the result of which would be that not only the interest of the deceased would be determined but of all other members of the family entitled to a share on the partition of the HUF property, i.e., the sons, the widow, etc. That being the position, the shares of the lineal descendants clearly get determined in the same process of determining the interest of the deceased under Section 39(1) and it is not possible to accept the contention that there was no provision in the Act to determine the interest of the lineal descendants for the purposes of aggregation and, therefore, the provisions of Section 34(1)(c) are unworkable.
11. This ruling of the Supreme Court came for review by the Supreme Court recently in the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh. The Supreme Court held that right of the female heir to the interest inherited by her in the family property gets fixed on the death of the male member under Section 6 and that she acquires an indivisible interest in the specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. The same would be the eifect so far as the share of male members of the family are concerned under Section 6 (Explanation 1). The contention of the learned counsel of the accountable person that provisions of Section 34(1)(c) are unworkable is, therefore, untenable. Therefore, the same is rejected.
12. It was then urged on behalf of the accountable person, following the decision of the Calcutta High Court in Satyanarayan Saraf v. ACED [1978] 111 ITR 432, that for determining the interest of lineal descendants under Section 34(1)(c), a notional partition not only of the bigger HUF but also of the smaller HUFs is contemplated and on such a partition of the former HUF, the wife of the son of the deceased would be entitled to a share equally to that of her son and, to the extent of the share of the wife of the son, the same could not be aggregated under Section 34(1)(c).
13. The learned departmental representative contended that as against the decision of the single Judge of the Calcutta High Court in a writ proceeding, we should follow the decision of the Madhya Pradesh High Court in proceedings in reference Section 64(1) of the Act in CED v.Prakashchand [1984] 147 ITR 1, wherein their Lordships dissented from the decision of the Calcutta High Court.
14. We have considered the rival contentions. The provisions in this regard are not really very clear and in the two rulings referred to above, there is no indication why conflicting views were taken therein.
There is no clear indication as to why the Calcutta High Court held that to determine the shares of lineal descendants, a notional partition of a smaller HUF is also contemplated and why the Madhya Pradesh High Court held to the contrary. Under the Hindu law, when a partition takes place in the bigger HUF, there is no assumption that there is also a partition in the smaller HUFs. The share which would be allotted to the son on partition of the bigger HUF would, however, be ancestral property in the hands of the son qua his son or sons and his sons would get an interest in that property in which he could also claim partition. In fact, the son's son gets an interest by birth in the coparcenary property to the extent his father has an interest in the ancestral property. Therefore, what his son gets on the partition of the ancestral property with his father is not his individual property but the ancestral joint family property in his hands qua his own branch. Therefore, so far as his own branch is concerned, the share of the son in the property would have to be determined by assuming a partition with his own son in which his own wife will get a share too.
15. On a plain reading of Section 34(1)(c) it is, however, not clear whether the reference to the lineal descendants in this Sub-Section is only to the sons of the deceased or whether it will include grandsons also. If it refers only to his sons, then the interest of the lineal descendants would be in accordance with the interpretation given by the Madhya Pradesh High Court, while if it includes grandsons also, then the interpretation given by the Calcutta High Court would apply. We, however, respectfully follow the decision of the Madhya Pradesh High Court because that is the decision of the Division Bench on a reference of exactly the same question, i.e., aggregation of the interest of the lineal descendants under Section 34(1)(c) and hold that the authorities below were correct in aggregating three-fifth share of three sons with that of the deceased. The question referred to the Special Bench is, accordingly, answered in favour of the revenue.
16. We now proceed to dispose of the remaining points in the appeals both by the department and the assessee.
In the assessee's appeal, the first ground pertains to the valuation of goodwill of Bombay Metals Syndicate and of Mehta & Co. The deceased had 18 per cent share in the goodwill of the Bombay Metals Syndicate at the time of his death, though before 4-1-1971 his share was 23 per cent. On 4-1-1971, the grandson of the deceased was taken in as a partner with 10 per cent share, while the share of the deceased was reduced by 5 per cent and that of the deceased's son, i.e., new partner's father, was reduced by the remaining 5 per cent. No gift-tax proceedings were, however, taken so far as 5 per cent share of the new partner's father is concerned. When the deceased died, the Assistant Controller treated 5 per cent share taken (sic) by the deceased as a gift within two years before the death. The Assistant Controller accordingly, valued the goodwill, so far as Bombay Metals Syndicate is concerned, to the extent of 23 per cent as passing on the death. The Controller (Appeals) followed the Gujarat High Court decision in Rasiklal Lallubhai Shah v.CED [1980] 124 ITR 212 and the Supreme Court decision in CED v. R.V.Viswanathan [1976] 105 ITR 653 and held that 5 per cent share surrendered by the deceased in favour of his grandson could not be treated as a gift. Therefore, its value could not be included under Sections 9 and 27 of the Act.
17. So far as the question whether the two firms in which the deceased was a partner had any goodwill or not, the Controller (Appeals) held that they did have goodwill and both the firms had super profits. He worked out super profits by allowing Rs. 24,000 as managerial remuneration and 10 per cent interest on capital and the goodwill was computed taking two years' multiple of average super profits. On that basis, the share of the deceased was worked out.
18. Before us, this order has been challenged both by the accountable person and by the revenue. We have heard the learned counsel for the assessee and the learned departmental representative. The contention on behalf of the accountable person is that he became partner according to the deed of partnership, as available on pages 3 to 14 of the paper book and had agreed to share the losses and he was also a working partner. There is, indeed, no specific requirement to contribute any capital. Reliance has been placed on various rulings of the Bombay High Court for the proposition that on these facts, no gift can be said to have been made by the deceased in favour of the grandson and the provisions of the Act are not attracted. In CED v. Kantilal Nemchand [1978] 115 ITR 89 (Bom.), the sole proprietor had converted his business into partnership by admitting his son as a partner. The High Court held that both initially, when the son was admitted as a partner with 6 annas share and, subsequently, on the occasion of raising his profit sharing to 12 annas, the parties intended that the son would take active interest in the work of the business as a working partner and the labour and energy by the son in the partnership business would have to be regarded as sufficient consideration for taking the son as a partner with the share in the business and, subsequently, increasing the share. Therefore, there was no gift of goodwill or tenancy rights.
In Raman Lal Nagji and Dhirajlal Nagji [1979] 118 ITR 785 (Bom.) the deceased took in his son as a partner in his proprietary business but retained the goodwill to himself. Thereafter, a fresh partnership deed was executed reshuffling the shares of partners and deleting the clause regarding the goodwill. Subsequently, new partners were also admitted.
The High Court held that there was no gift by the deceased to other partners of the goodwill and there was adequate consideration for parting with goodwill by the deceased. Devotion of time, energy and attention by the other partners was adequate consideration.
In CGT. Smt. Lalita B. Shah [1979] 118 ITR 794 (Bom.), the assessee had been working as a chartered accountant for several years and when his son passed C.A. examination, he employed him and, subsequently, he was taken as a partner and his share was 40 per cent, while the assessee retained 60 per cent. The son was to work whole-time whereas the assessee was not obliged to attend to the business any more than what he thought proper. In consideration of the son devoting full time and attention to the business, the goodwill on the death of the father was to go to him. The High Court held that no gift of goodwill was involved.
In CED v. Ramesh Rajaram Sakhalkar [1979] 118 ITR 846 (Bom.), sons of all the three partners were taken in as partners and the recital in the preamble stated that the original partners had become old and were not keeping good health and could not attend to the business as fully as was necessary. It was held that the admission of new partners was not without consideration and, therefore, there was no gift.
In CGT v. J.N. Marshall [1979] 120 ITR 613 (Bom.), the High Court held that onus is on the revenue to establish that there was no consideration for the transfer of a share in the firm in money or money's worth. The asses-see and his son were partners in the firm and the assessee alone was entitled to goodwill. Three new partners including two daughters were taken in and the deed provided that the goodwill of the firm would go to the son and two daughters of the assessee. It was held that the transfer was not without consideration and the partnership deed must be considered as a whole. The obligation of the newly admitted partners to work in the business and their liability to share the losses and the reduction of the shares of the profits of the sons and similar other factors go to show that there was consideration in money's worth when in the new deed of partnership, the rights qua goodwill, which previously belonged to the assessee, were vested in the son and two daughters.
In CGT v. Premji Trikamji Jobanputra [1982] 133 ITR 317 (Bom.), a sole proprietary business was converted into a partnership with another partner in 1960 and there was a change in the constitution of the firm in 1961 when a third partner was admitted and two minors, who were the sons of the assessee, were admitted to the benefits of the partnership of the firm. As a result of the reconstitution of the firm, his share was reduced from 50 per cent to 30 per cent and the two minor sons were given 15 per cent share each. The Tribunal held that there was no gift because the admission of the minors was a voluntary act of the three major partners and not an individual act or a bounty by the assessee.
The Bombay High Court held that the view taken by the Tribunal was erroneous. It appeared that though the shares were given to the minors on their admission to the benefits of the partnership as a result of agreement amongst the three partners the manner in which the quantum of shares had been readjusted clearly showed that it was the share of the erstwhile partner which had been reduced with a view to conferring rights on the minors, the High Court held that the question whether there has been a gift of a share in the goodwill of the firm to his minor sons would depend on the determination of two specific questions, viz., (i) whether the value of the assets of the old firm, including the goodwill, exceed its total liabilities; and (ii) whether the incoming partner or partners who had been admitted to the benefits of partnership (i.e., the minors) had brought in any capital. If the assets, except the goodwill, did not exceed the liabilities, then there could be no gift in the case of the goodwill. If any partner had contributed capital, there could not be any gift of goodwill.
It would appear that the view taken by the Bombay High Court in this case is somewhat at variance with the view taken in other cases discussed earlier.
19. The Madras High Court in Addl. CGT v. A.A. Annamalai Nadar [1978] 113 ITR. 574 held that where sons or minors and one major son contributed capital and where major son rendered service and agreed to share losses, no gift of goodwill was involved when the assessee converted his proprietary business into partnership taking the major son as a partner and admitting minor sons to the benefits of partnership.
20. The Karnataka High Court in D.C. Shah v. CGT [1982] 134 ITR 492 held that mere induction of persons as partners in an existing firm would not result in a transfer as such resulting in a gift. In order to find out whether there was a gift, the terms of the documents are material and merely because the shares in the profits and losses allotted to one or the other person is reduced compared to the position obtaining prior to the reconstitution of the firm and allotment is made to new partners, it could not be assumed that the allotment to new partners was of reduction effected. In that case, the firm comprised of 11 partners and son of one of the partners was taken in as a partner with effect from 1-1-1964. The father's share was reduced by the share given to the son treating him as a partner. In 1968, there was further reconstitution of the firm with four new partners and four minors being admitted to the benefits of the partnership. The shares were again reallocated. The shares of erstwhile partners were reduced and new partners were allocated shares. All the partners contributed capital and the new partners agreed to work for the firm. The High Court held that there was adequate consideration and no gift was involved.
21. In the light of these rulings and having regard to the terms of the partnership deed, the incoming partner being a major and his having agreed to share the losses, we are of the opinion that no gift was involved when he was admitted to the partnership firm. He was an active partner in the firm as stated before us and, therefore, the Controller (Appeals) was correct in holding that to the extent of 5 per cent share in the firm, there was no gift involved so far as the deceased was concerned.
22. So far as the valuation of the goodwill is concerned, we agree with the Controller (Appeals) that both the firms did have goodwill and the Controller (Appeals) was also correct in computing the value of the goodwill by taking the super profits and multiple of two. His order in this regard is, therefore, correct and is upheld.23. Ground No. 3 regarding the claim under Section 33(1)(n) of the Act, has not been pressed.
24. Ground No. 4 has already been disposed of because that was the ground referred to the Special Bench.
25. Ground No. 5 pertains to the claim of deduction in respect of estate duty liability. The claim of deduction of the estate duty liability has rightly been rejected in view of the decision of the Karnataka High Court in K. Bhoomiamma v. CED [1978] 115 ITR 703 and the Andhra Pradesh High Court in-CED v. Estate of Late Omprakash Bajaj [1977] 110 ITR 263. We, therefore, uphold the order of the Controller (Appeals) in this regard.
26. In the departmental appeal, the first two grounds pertain to the reduction in the computation of the goodwill of the two firms and also in respect of the gift of goodwill. Both these grounds fail for the reasons given by us while discussing the same issues in the appeal by the accountable person.
27. The deceased had one-half share in the residential house at Amreli in Gujarat known as 'Jaya Nivas'. This house was purchased by him jointly in 1966 with his wife for a sum of Rs. 55,000 and the value of his half share came to Rs. 27,500. The Assistant Controller held that the open land could not be said to be appurtenant to the self-occupied portion and the exemption could not, therefore, be allowed in respect of the entire house and the land. No details were available regarding the FSI for municipal regulations and looking into the facts that it was a bungalow, he held that the 20,000 sq. ft. of land would be available for further construction. He, accordingly, valued this 20,000 sq. ft. of land at Rs. 25,000 and included Rs. 12,500 in the dutiable estate.
28. Before the Controller (Appeals), this order was challenged and a certificate was filed from the municipal board that this open land was attached to the self-occupied house. The Controller (Appeals), accordingly, deleted the addition.
29. We have considered the rival contentions in this regard. The certificate issued by the Nagarpalika is on page 21 of the paper book in Gujarati and its English translation is on page 22 of the paper book. It states that the main building, the out-house, lavatory blocks-cum-house, garden, etc., are so situated and constructed that it is not possible to put up any new construction or extension. Although this certificate is dated 6-4-1976 and the date of death is 17-8-1971, the department has brought on record no material to controvert the statements made therein. That apart, the very basis of treating the FSI as one in a small town is without any foundation. On the material on record, therefore, we see no reason to interfere with the order of the Controller (Appeals) in this regard.
30. The next ground pertains to the computation of the share of the deceased in the development rebate reserve of the firms Mysore Wire Metal Industries and Karnataka Cables. The Assistant Controller computed it on the basis of the balance sheet as on 19-10-1971 while the Controller (Appeals) has computed it on the basis of the balance sheet as on 31-10-1970. The date of death was 17-8-1971. The development rebate reserve is credited at the end of the year and since the date of death was more than two months prior to the end of the year, the Controller (Appeals) was correct in holding that the balance sheet as on 31-10-1970 should be taken into consideration for working out the share of the deceased in the development rebate reserve in the two firms. The reserve on the basis of which the Assistant Controller has worked out the share of the deceased did not really exist on the date of death because the development rebate reserve as available on 19-10-1971 had not been credited till the date of the death. The order of the Controller (Appeals) is, therefore, correct and is upheld.31. The last ground pertains to the exclusion of the value of the LIC policy. The only reason why the Controller (Appeals) has excluded the value of the LIC policy is that the policy was assigned to his wife on the very date it was purchased, as per the letter of the LIC, and, therefore, it could not be said that the policy was kept up by the deceased under Section 14 of the Act. The correctness of this order has been challenged before us.
32. Having heard the contentions on both the sides, we are of the opinion that the order of the Controller (Appeals) is erroneous and unsustainable. The mere fact that the policy of insurance had been assigned by the deceased to his wife does not mean that the amount of insurance does not pass on the date of death. Section 14(1) lays down that the money received under the policy of insurance effected by any person on his life, where the policy is wholly kept up by him for the benefit of a donee, whether nominee or assignee, or a part of such money in proportion to the premia paid by him, where the policy is partially kept up by him for such benefit shall be deemed to pass on the death of the assured. All the conditions of this section have been satisfied because the deceased had taken the policy of insurance on his life and he had assigned the policy to his wife who would be the donee.
The only thing that has to be found out is whether the policy was wholly kept up by him for the benefit of the donee. The meaning of 'kept up' is 'to keep it alive by regular payment of premium'. The effect of an assignment is a transfer of policy. Section 38(5) of the Insurance Act, 1938 lays down that an assignee of an insurance policy steps into the shoes of the assignor and can institute proceedings in relation to the assignment and this right is irrevocable, as held by the Madras High Court in Seethalakshmi Ammal v. CED [1966] 61 ITR 317.
33. Neither of the authorities below have cared to find out as to who paid the insurance premia after the assignment which, according to the letter of the LIC on page 23 of the paper book, was with effect from the date of the policy itself on 17-8-1956. To the extent the deceased paid the premium, the property would pass on his death to the donee.
Therefore, it is necessary for the Assistant Controller to go into the facts and find out as to who kept the policy alive by paying premium during the lifetime of the deceased. The entire sum of Rs. 38,510 cannot be included nor can it be excluded without giving a finding of fact on the point raised above. Accordingly, we set aside the orders of the authorities below and restore the matter before the Assistant Controller with the direction to give a finding of fact after going through any material which the accountable persons may produce as to who kept the policy alive by paying the premia regularly. To the extent that he finds, by direct or by circumstantial evidence, that the deceased paid the premia, to that extent only the amount shall be included in the dutiable estate.