Pyne, J. - (1.) A short, but none the less interesting, point of first impression relating to construction and interpretation of Section 73A of the Estate Duty Act, 1953 arises for consideration in this appeal which is directed against a judgment and order of Amiya Kumar Mookerji, J. dated September 24, 1973. For a proper appreciation of the point involved in this appeal it is necessary to refer to some of the relevant facts of this case.
(2.) The respondent Ashoke Singh (who was the petitioner in the Court of the first instance) was at the relevant time the Karta of a joint Mitakshara Hindu family consisting of himself and his brother. The respondent's father one Ganga Singh died intestate on February 6, 1957 when the respondent and his brother were minors. The respondent's maternal uncle one Prannath Shegal and his brother moved an application in the City Civil Court at Calcutta sometime in March 1967 for appointment of guardian of the minors and in August 1968 the said maternal uncle was appointed as the guardian of the said minors. One Jamuna Singh, the paternal uncle of the minors, i.e. the respondent and his brother, preferred an appeal to this Court against the said order of the City Civil Court and the said appeal was disposed of by a Division Bench of this High Court by its order dated 7th September, 1970 holding, inter alia, that in the interest of the minors concerned the appointment of Prannath Shegal guardian would continue until 7th December, 1970 when the elder of the minors i.e., the respondent herein would attain majority. The said guardian Prannath Shegal it appears, never filed any account of the properties of the deceased Ganga Singh as required by and in terms of Section 53 and/or Section 56 of the Estate Duty Act, 1953 (hereinafter referred to as 'the Act') with Estate Duties Authorities. After attaining majority on 7th December, 1970 the respondent also did not file any such account of properties with the Controller of Estate Duty relating to the properties left by his deceased father the said Ganga Singh as the respondent was unaware that such an account was required to be filed under the Act within six months from the date of the death of his father. Thereafter, the respondent filed an application for grant of a succession certificate in the City Civil Court at Calcutta wherein by an order dated 25th July, 1972 the learned Chief Judge of the said Court directed the respondent to produce a certificate as required under section 56(2) of the Act because without the same no grant of succession certificate could be made. It appears that, in the aforesaid circumstances, the respondent was advised to file an account with the Estate Duty Authority regarding the estate of his deceased father the said Ganga Singh and on 18th August 1972 the respondent filed an account of the properties left by hit deceased father with the Assistant Controller, Estate Duty showing therein that the value of the estate approximately of Rs. 52,000/-. Thereupon the respondent received a notice issued under section 58(2) of the Act dated 4th September, 1972 along with a questionnaire sent by the Assistant Controller of Estate Duty, 'A' Ward, Calcutta intimating the respondent that the said officer had fixed the date of hearing of the matter on 19th September, 1972. On the fixed date, i.e., 19th September 1972, the respondent appeared before the said Assistant Controller of Estate Duty and contended that inasmuch as 5 years had already expired from the date of death of the deceased no proceeding could be initiated under the said Act in view of Section 73 A thereof and, therefore, the said officer had no power , authority and jurisdiction to initiate any proceeding under section 73A of the Act or to issue any notice under section 58 (2) of the said Act or to put any questionnaire thereunder and by doing the same the said officer was proceeding entirely without jurisdiction. Inspite of the aforesaid objections of the respondent the said officer fixed the date of hearing on the December 15, 1972. In the above circumstances being aggrieved by the said notice dated 4th September, 1972 issued under section 58(2) of the Act and the proceeding taken thereunder the respondent moved an application under Article 226 of the Constitution challenging the validity of the said notice and the said act of the said officer and obtained a Rule Nisi and an ad interim injunction restraining the said officer from proceeding with the levy of an estate duty under the Act until the disposal of the Rule.
(3.) Various contentions were advanced on behalf of the parties before Amiya Kumar Mookerji, J. who heard the said application It was mainly contended on behalf of the petitioner in the said application i.e., the respondent in this appeal that in view of the provisions of section 73A(a) no proceeding under the Act could be commenced in respect of the estate of late Ganga Singh after the expiry of 5 years from the date of his death and as such no duty was payable. Inasmuch as the proceeding for levy and realisation of estate duty in respect of the estate of the said Ganga Singh became barred after 5 years from the date of his death the respondent should got a declaration that he was not liable to pay any duty. On behalf of the Department it was contended that though in the present case no proceeding for levy was commenced by the Department but the respondent for the purpose of obtaining a certificate under section 56(2) of the Act voluntarily submitted a statement of account and although such statement was not filed within the time specified in sub-section (2) of section 53 of the Act, none the less, it should be regarded as a valid statement and the Assistant Controller had jurisdiction to issue a notice under section 58(2) of the Act. Amiya Kumar Mookerji, J. however by his judgment and order dated 24th September, 1973 allowed said application and made the Rule Nisi absolute. His Lordship held that in the instant case in view of section 73A(a) of the Act no proceeding for levy of any estate duty under the Act could be commenced and that in a case where the said section was attracted there was lack of inherent jurisdiction of the Assistant Controller to commence or initiate any proceeding what so ever under the Estate Duty Act. The instant appeal has been preferred by the Department against the aforesaid judgment and order of Amiya Kumar Moerkerji, J.;