MANMOHAN DASS KAPUR Vs. CONTROLLER OF ESTATE DUTY ASST
LAWS(HPH)-1991-3-6
HIGH COURT OF HIMACHAL PRADESH
Decided on March 27,1991

MANMOHAN DASS KAPUR Appellant
VERSUS
ASSISTANT CONTROLLER OF ESTATE DUTY Respondents

JUDGEMENT

Devinder Gupta, J. - (1.) IN the present writ petition, the petitioners have sought the quashing of the order, annexure "G", passed by the respondent on August 29, 1980, refusing to allow relief to the petitioner in the payment of the entire court-fees paid for obtaining probate.
(2.) SMT. Lila Wati Kapur, mother of petitioner No. 1, expired on May 23, 1958. She had executed a will on April 10, 1958, creating a trust known as "Lila Wati Kapur Trust, Shimla". The trust is petitioner No. 2 and petitioner No. 1 has been named in the will as sole executor and to manage the property of the deceased as well as the income of the trust. Petitioner No. 1 filed an estate duty return under the provisions of the Estate Duty Act, 1953 (Act No. 34 of 1953) (hereinafter to be called as "the Act"), and the respondent on March 28, 1959, framed an estimate on the total estate amounting to Rs. 3,26,642 after giving credit for a sum of Rs. 3,750 for succession certificate fees and Rs. 20,382.24 on account of provisional demand under Section 57(2) and a demand for Rs. 1,114.05 was created. Petitioner No. 1, in the meanwhile, had filed a petition under Sections 222 and 276 read with Section 300 of the Indian Succession Act in the Punjab and Haryana High Court at Chandigarh for grant of probate to the estate of the deceased. The said probate petition (Probate No. 7 of 1977) was decided on March 1, 1978, in which the estate of the deceased was determined as Rs. 3,27,642. In pursuance of the order passed by the Punjab and Haryana High Court, petitioner No. 1 paid a sum of Rs. 13,106 towards court-fees for obtaining the probate. Petitioner No. 1, thereafter, on October 25, 1978, approached the respondent with an application under Section 50 of the Act claiming a refund of Rs. 13,106 being the amount of additional probate duty paid for obtaining full representation for the, entire estate. After exchange of a lot of correspondence, the respondent, on August 29, 1980, passed the impugned order declining to grant any relief to the petitioner. The ground on which the respondent declined to give any relief to the petitioner was that there was no mistake apparent on the face of the records which could be rectified by him under Section 61 of the Act and, as the case of the petitioner was not covered by the said section, the relief in the payment of court-fees could not be granted t6 him. Petitioner No. 1, thereafter, approached this court with a prayer to quash annexure "G" order and to direct the respondent to refund the said sum of Rs. 13,106. The respondent has contested the writ petition by urging that, as the assessment had been completed on March 28, 1959, and the petitioner was allowed relief from estate duty for the amount of court-fees already paid by him, even if the petitioner had paid court-fees subsequently, there was no provision in the Act for giving relief to the petitioner and the powers contained in Section 61 of the Act were not required to be exercised as there was no mistake apparent on the face of the record.
(3.) WE have considered the arguments advanced by learned counsel for the parties and perused the record of the case. Section 50 of the Act provides for relief from estate duty where court-fees have been paid for obtaining refund to the estate of the deceased and it says as under : "Where any fees have been paid under any law relating to court-fees in force in any State for obtaining probate, letters of administration or a succession certificate in respect of any property on which estate duty is leviable under this Act, the amount of the estate duty payable shall be reduced by an amount which is equal to the court-fees so paid." It is not disputed by the respondent that the refund claimed by the petitioner is with respect to the additional amount of court-fees paid by the petitioner under the provisions of law relating to court-fees. The only contention of the respondent is that, since Section 50 merely permits deduction of the stamp duty paid and not the duty which becomes payable, the petitioner is not entitled to the refund and as, on the day when assessment was made, the petitioner had not paid the additional amount of court-fees, he is not entitled to refund. In so far as the power of rectification of mistakes is concerned, it is submitted that there was no mistake apparent on the record which could have been rectified.;


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