JUDGMENT

Ajit K. Sengupta, J.

1. In this reference under Section 64(1) of the Estate Duty 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 assessment made under Section 58(3) of the Estate Duty Act, 1953, was time-barred within the meaning of Section 73A of the said Act?"

2. The facts leading to this reference are stated hereinafter :

Shri Jaydayal Lohia, the deceased herein, died on August 16, 1971. Estate duty return was filed by the accountable person on October 7, 1976. An application was made on September 12, 1979, for grant of certificate under Section 57(2) of the Act even though no application was made to any court whatsoever by the accountable person or by anybody also for grant of representation and/or succession certificate in the matter of the estate of the said deceased.

3. When a plea was taken before" the Assistant Controller of Estate Duty that the assessment of estate duty could not be made in view of the bar of time laid down in Section 73A of the Act, the Assistant Controller of Estate Duty observed "the return was filed more than five years after the death of the deceased and the return was filed by the accountable person voluntarily." The Assistant Controller of Estate Duty did not refrain from making the assessment and made such an assessment under Section 58(3) of the Act by his order dated May 28, 1986.

4. Before the Commissioner of Income-tax (Appeals), il was submitted that the assessment was liable to be cancelled as time-barred in terms of Section 73A of the Act. It was also submitted that even the filing of the estate duty return voluntarily by the accountable person could not save the period of limitation. The Commissioner of Income-tax (Appeals), however, set aside the order of the Assistant Controller as he had not considered the submission made by the accountable person in his letter dated May 26, 1986. The Commissioner of. Income-tax (Appeals), therefore, directed the Assistant Controller to consider such submission and pass necessary orders according to law.

5. The accountable person came up in appeal before the Tribunal with the plea that, since all the dates with regard to the question of assessment being time-barred were already filed before the Commissioner of Income-tax (Appeals), he should have disposed of the issue instead of setting aside the assessment. Before the Tribunal, however, the departmental representative filed a copy of the application submitted by the accountable person on September 12, 1979 for grant of a certificate under Section 57(2) of the Act in respect of payment of estate duty on the estate of the deceased even though neither the Assistant Controller nor the Commissioner of Income-tax (Appeals) had discussed the said application anywhere in their orders nor relied upon the same in passing their orders.

6. The Tribunal, relying on the decision of the Division Bench of this court in the case of Asst. CED v. Ashok Singh [1980] 124 ITR 587, came to the conclusion that the assessment made by the Assistant Controller was not barred by limitation. The accountable person moved a miscellaneous application before the Tribunal contending that the conclusion of the Tribunal was not covered by the decision of this court in the case of Ashok Singh [1980] 124 ITR 587. The Tribunal rejected this application on the ground that whether the conclusion of the Tribunal is supported by the above decision of the High Court or not is not a mistake apparent from the record.

7. At the hearing before us, Mr. Chopra has relied on a passage from the decision in the case of P. C. Saxena v. State , which was also referred to by the Division Bench in the case of Ashok Singh [1980] 124 ITR 587 (Cal), The passage which has been relied on by Mr. Chopra is as follows (at page 109) :

"If a party does not want to obtain any representation or any succession certificate and does not move the civil court, the estate duty authorities have to govern themselves by Section 73A and other provisions of law applicable for levy of estate duty. But, should a party approach the court for grant of succession certificate and should the application be within time and otherwise in order, a mandatory duty has been cast on the party to furnish a copy of the accounts in cases governed by Clauses (a) and (b) of Sub-section (1) and a copy of the application under Sub-section (2) of Section 56 to the Controller. In either case, whether governed by Sub-section (1) or Sub-section (2), the party is bound to produce a certificate from the Controller to the effect that estate duty has been or will be paid or that none is due. The civil court does not possess any jurisdiction or discretion to waive the aforesaid condition which is precedent to the grant of representation or succession certificate. So, there is no escape for a party to comply with the mandatory conditions prescribed by Section 56 of the Act."

8. On the basis of the said decision, Mr. Chopra contended that since, in this case, the assessee did not want to obtain any representation or any succession certificate and did not move the civil court, the estate duty authorities have to govern themselves by Section 73A and other provisions of law applicable for levy, of estate duty.

9. We are, however, unable to accept this contention. Whether or not the assessee has moved the civil court for obtaining the succession certificate is not material. The question is whether the assessee wanted to have the succession certificate and whether with that end in view he moved the Assistant Controller of Estate Duty by filing a statement. By this process, in this case, admittedly, the accountable person filed the estate duty return on October 7, 1976, and an application was made on September 12, 1979, for grant of certificate under Section 57(2) of the Act, even though no application was made to any court by the accountable person. After considering the provisions of the Estate Duty Act, the Division Bench of this court, in Ashok Singh [1980] 124 ITR 587, came to the conclusion as follows (at pages 610, 611, 612) :

" It, therefore, appears that after the 1958 amendment, according to the provisions of Section 56, in all cases and without any exception, no grant of representation or succession certificate shall be made unless the account or the copy of the application is delivered to the Controller and a provisional certificate under Section 57(2) or a final certificate under Section 67 of the Act is produced. Therefore, if the time-limit mentioned in Section 73A of the Act is made to apply to cases covered by Section 56 then in cases where five years have expired after the death of the deceased or where three years have passed after the assessment made previously and there is a question of reassessment, no grant of representation or succession certificate can be made because the Controller cannot issue a certificate under Section 57(2) or Section 67 unless there is an assessment and the assessed duty has been paid or provided for or he comes to the conclusion that no duty is payable in respect of the property passing on the death of the deceased. In other words the mandatory provisions of Section 56 cannot be fulfilled.

It has been contended on behalf of the respondent that in cases where five years have expired from the date of death of the deceased or where three years have expired from the date of first assessment and there is a question of reassessment, the Controller will give a certificate to the effect that there is no claim of estate duty or that no duty is due from the accountable person. It should, however, be noticed that under the relevant provisions of the Estate Duty Act and the Estate Duty Rules (namely, Sections 57 and 67 and rule 26) certificate can be given only after the assessment and depending upon the result thereof. The prescribed forms of certificate are E. D. 4 and E. D. 6 which have been set out earlier. Form E. D. 6 cannot apply to cases like the instant one because here it cannot be said that there is no claim for estate duty under the Act. The claim remains but cannot be enforced. Section 73A does not do away with the liability of the accountable person for payment of duty, it only bars the initiation of proceedings for levy of duty. Therefore, if the liability remains but proceedings cannot be initiated there is no question of full payment of duty. In such cases, it cannot also be stated in the certificate by the Controller that there is 'no claim' of estate duty from the accountable person.

Therefore, if Section 73A is so construed as to apply to and govern a case coming under Section 56 then the latter section would become inapplicable in certain cases as mentioned above. Not only that, such a construction of Section 73A, would also be in conflict with the provisions of the Indian Succession Act whereunder no time-limit is fixed for making an application for the grant of representation or succession certificate. Therefore, in removing the bar of six months from the section, which was in the corresponding old Section 57, by the 1958 amendment the legislative intent appears to be that in all cases of application for the grant of representation or succession certificate, the provisions of Section 56 would apply. It, therefore, appears that the bar of limitation as provided in Section 73A is not applicable to cases where the application is made for the grant of representation or succession certificate and the account or the copy of the application is delivered to the Controller as required by Section 56.

The language of Section 73A should also be noted. It states that : 'No proceedings for levy of any estate duty under this Act shall be commenced . . .' This, in our opinion, means, as contended on behalf of the appellant, only those cases where the initiation or commencement of the proceedings for the levy of estate duty is at the instance of the Controller such as under Section 59 or Section 58(4) of the Act when no account is delivered or there is question of property escaping assessment. It should also be noticed that although Section 73A is specifically mentioned in Section 59 yet that section is not mentioned in Section 56. This shows that the legislative intent is not to apply the limit mentioned in Section 73A to cases coming under Section 56 of the Act. Section 73A, therefore, does not apply to cases where proceedings commence in consequence of an application for the grant of representation or succession certificate. Under Section 56 the Initiation or commencement of the proceedings is not at the instance or behest of the Controller but it follows upon the submission of account or copy of application by the accountable persons and what the Controller is required to do is in a regular manner, upon receipt of such account or copy of the application. Therefore, in such cases there cannot be any commencement or initiation of proceedings for the levy of duty." (emphasis supplied).

10. In our view, whether or not the accountable person makes an application for the grant of representation at the time when the proceedings were pending on the basis of the return filed by the accountable person, the principles laid down by the aforesaid decision will equally apply to the facts of this case inasmuch as the initiation or commencement of the proceedings for the levy of estate duly was not at the instance of the Controller. It was only in consequence of the proceedings commenced on the basis of the return filed voluntarily by the accountable person.

11. For the reasons aforesaid, we answer the question in this reference in the negative and in favour of the Revenue.

12. There will be no order as to costs.

Shyamal Kumar Sen, J.

13. I agree.