K.C. Agrawal, J. - (1.) SAHU Shiva Shakti Saran Kothiwal, father of the petitioner and respondent No. 2 died on June 5, 1975. The petitioner filed the estate duty return on June 3, 1977. In between the death and the filing of the return, the petitioner has alleged that he had applied to the Assistant Controller, Lucknow, to supply to the petitioner an Estate Duty Return Form D.E.I, which was done on May 6, 1976.
(2.) ON receipt of the estate duty return, the Assistant Controller, Luck-now, respondent No. 1, made a provisional assessment under Section 57 of the Estate Duty Act, 1953 ("the Act"), and created a demand of Rs. 2,12,872. The petitioner filed an objection dated June 21, 1977, against the provisional assessment showing various mistakes that had crept in it. The Assistant Controller completed the regular assessment under Section 58 of the Act on March 14, 1981. The petitioner again found certain mistakes in the final assessment order and, therefore, an application purporting to be under Section 61 of the Act was made on his behalf. The prayer made in this application was as follows : "A challan for Rs. 12,522 may kindly be issued. A challan for Rs. 52,522 may be issued to Parmatma Saran. No interest is chargeable under Section 53(3) as no order on the assessee's application dated June 3, 1976, was passed. Interest under Section 70 may kindly be scaled down pro rata after giving credit for all the amounts realised from the Life Insurance Corporation. The interest should be calculated at the rate of 4 per cent, and not at the rate of 6 per cent, as was done by your office. " Without disposing of this application, a demand notice dated January 21, 1982, was issued to the petitioner under Section 73 of the Act. The recovery certificate was, however, returned. In the" meantime, the audit party of the Accountant-General pointed out some mistakes in the assessment order framed under Section 58 on August 21, 1981. Respondent No, 1 in pursuance of the audit report, issued a notice calling upon the petitioner to appear before him on the date mentioned therein. The notice was in respect of two items. Out of these two items, we are concerned with only one and the same is mentioned below : "Why the liability for Rs. 16,106 allowed in original assessment should not be disallowed as such the income arriving after death June 5, 1975, assessable for 1976-77 would be liability (sic). Date fixed February 23, 1982." In pursuance of the notice for rectification issued under Section 61 of the Act, the petitioner appeared before respondent No. 1 who on June 18, 1982, passed the impugned order rectifying the mistake in the order. It was noted: " In reply the assessee's counsel appeared and stated that he has no objection to the proposed rectification. Accordingly, the assessment is revised. "
(3.) THE petitioner was dissatisfied with the order dated June 18, 1982, under Section 61. Consequently, he moved an application dated July 31, 1982, against the rectification ordered on June 18, 1982. THE petitioner alleged that the withdrawal of deduction of Rs. 16,106 allowed in the original assessment as a debt due on the estate of the deceased in respect of income-tax liability for 1976-77 was unjustified. THE petitioner also alleged that the rate of interest as laid down in Section 70 of the Act was 4 per cent, and not 6 per cent, at which rate the interest had been calculated. On June 18, 1982, itself, on which date the rectification was ordered, the Assistant Controller called upon the petitioner to deposit the amount and further warned that in case the amount was not paid on or before the date specified, the petitioner would be liable under Sub-section (1) of Section 46 of the Indian Income-tax Act, 1922, as applied to estate duty under Sub-section (5) of Section 73 of the Estate Duty Act to a penalty which could be as much as the duty due. The petitioner thereafter filed the present writ petition on November 2, 1982, in this court. The prayer made in the writ petition was for quashing of the order under Section 61 of the Act dated June 18, 1982, and also for prohibition commanding the Assistant Controller not to charge any interest for belated filing of the return and/or late payment of the estate duty demand.;