Judgment :- THANIKKACHALAM J. In this tax case petition, the Controller of Estate Duty, Madras, requests this court to direct the Tribunal to refer the following question of law said to arise out of the order of the Tribunal for the opinion of this court under section 64(3) of the Estate Duty Act, 1953 (hereinafter referred to as "the Act") "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law and had valid materials in holding that the property gifted by the deceased to Vasan Charitable Trust is not chargeable to estate duty in the hands of the accountable person as property passing on the death of the deceased ?" * One Sri T. S. Srinivasa Iyer (S. S. Vasan) died on August 26, 1969. During his lifetime, he had created a trust called "Vasan Charitable Trust" under a deed dated April 27, 1968. Initially, the corpus consisted of Rs. 15, 000 which the deceased settled on the trust. The trustees were the settlor, his wife and the settlor's son and his wife. On July 8, 1968, the deceased transferred to the trust land measuring 89 grounds and 1, 042 sq. ft. These lands together with the buildings thereon were leased out to Gemini Pictures P. Ltd. on October 4, 1967. The trust enjoyed exemption under the Income-tax Act, 1961. While completing the estate duty assessment on accountable persons, the Assistant Controller of Estate Duty included the value of Rs. 20, 10, 000 being the market value of the above lands as property passing on the death on the ground that the trust was created only 16 months prior to the death of the deceased and the deceased himself was one of the trustees of the trust, and hence the exemption provided under section 22 of the Act was not available. Accordingly, the Assistant Controller of Estate Duty brought to charge the sum of Rs. 20, 10, 000 being the value of the property to charge under the Act and completed the assessmentOn appeal, the Appellate Controller accepted the claim of the accountable person and allowed the appeal. Not satisfied with the order of the Appellate Controller, the Department preferred an appeal before the Appellate Tribunal. 20, 10, 000 being the value of the property to charge under the Act and completed the assessmentOn appeal, the Appellate Controller accepted the claim of the accountable person and allowed the appeal. Not satisfied with the order of the Appellate Controller, the Department preferred an appeal before the Appellate Tribunal. The Tribunal held that since the subject-matter, viz., the property was transferred by the deceased to a public charitable trust more than six months prior to the date of death, the property could not be deemed to have passed on the death of the deceased under section 9 of the Act. The Appellate Tribunal, however, held that since the property was not chargeable to estate duty under sections 5 to 17 of the Act, the provisions of section 22 cannot be invoked to bring the property to charge. Accordingly, the Tribunal confirmed the order passed by the Appellate Controller. Before us, the learned standing counsel for the Department submitted that the time factor as stated in section 22 of the Act was not considered by the Tribunal. It was further submitted that even in the decision of this court in CED v. H. N. Markandan 1974 (94) ITR 144 the time factor as stated in section 22 of the Act was not considered. Therefore, according to the learned standing counsel, since the gift was made within two years prior to the date of the death of the deceased, exemption under section 22 of the Act is not available, and that the property is chargeable under section 5 of the Act. Section 9 of the Act states as under "(1) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the deathProvided that in the case of gifts made for public charitable purposes the period shall be six months. (2) The provisions of sub-section (1) shall not apply to---- (a) gifts made in consideration of marriage, subject to a maximum of rupees ten thousand in value ; (b) gifts which are proved to the satisfaction of the Controller to have been part of the normal expenditure of the deceased, subject to a maximum of rupees ten thousand in value." * According to the proviso contained in section 9 of the Act, in the case of gifts made for public charitable purposes the period shall be six months. According to the facts arising in this case, the gift was made to the public charitable trust prior to six months from the date of death of the deceased. Therefore, the gift made for the public charitable purpose cannot be brought to charge under section 9 of the Act. If the property does not pass on the death of the deceased and the property is not chargeable to estate duty, then the question of looking into the exemption as granted under section 22 of the Act does not arise. The Assistant Controller placed much reliance on the provisions contained in section 22 of the Act wherein it is stated that the gift should have been made by the deceased two years prior to the date of his death. According to the Assistant Controller of Estate Duty, since, in the present case, the gift was made within a period of two years from the date of death of the deceased, the gifted property is chargeable to estate duty as the said property would be deemed to have been passed on the date of death of the deceased. This approach made by the Assistant Controller is not correct. Only when the property is chargeable to estate duty he must see whether there is any exemption granted for payment of estate duty. This approach made by the Assistant Controller is not correct. Only when the property is chargeable to estate duty he must see whether there is any exemption granted for payment of estate duty. Since the property in question was not deemed to have passed on the date of the death of deceased as the gift was made to a public charitable trust beyond the period of six months from the date of death of the deceased as contemplated under the proviso to section 9 of the Act, no estate duty is leviable in the present caseIn CED v. H. N. Markandan 1974 (94) ITR 144 this court, when considering the provisions of sections 5, 7 to 22 of the Act, held that: "the non-applicability of section 22 of the Estate Duty Act will not automatically result in the charge being imposed under section 5. The words 'shall not be deemed to include' occurring in section 22 cannot be construed as having a positive content so as to bring the properties referred to in that section within the charge, whenever the exemption under that section is not available. Even if the exemption provision does not apply to the facts of the case, the charge under section 5 can relate only to the property or interest that passes on the death of the deceased and it cannot apply to properties or interest that did not pass on the death of the deceased" * Thus, a plain reading of sections 5, 6 to 17 and 22 of the Act would go to show that the property gifted by the deceased in the present case in favour of a public charitable trust before a period of six months from the date of death of the deceased is not chargeable to estate duty. In that view of the matter, we answer the question referred to us in the negative and against the Department. Accordingly, this T.C.P. is dismissed. No costs.