JAFFAR H M Vs. CONTROLLER OF ESTATE DUTY ASST

JUDGEMENT

(1.) IN this petition, the order of the Assistant Controller of Estate Duty, Mangalore, dated February 17, 1975 (Ex. E), purporting to be under s. 61 read with s. 70 of the E.D. Act, 1953, is challenged.

(2.) THE petitioner is the accountable person who filed the return in respect of the estate consequent on the death of one Habibullah on January 9, 1963. An assessment order was made on December 25, 1961, a copy of which has been filed as Ex. A. THE principal value of the estate of the deceased was valued at Rs. 14,28,450. THE total tax payable was calculated at Rs. 2,58,840.41 and after giving deduction to the amount that had been paid under s. 57, the balance payable was Rs. 2,18,600.48. This was directed to be paid on or before January 31, 1967, and demand notice and challan were also sent along with the copy of the order. This order did not contain any direction in regard to the payment of interest. THEre was an appeal against this assessment to the Appellate CED. On the ground that the duty had been allowed to be in arrears, he caused notices to be issued under s. 46(5A) of the Indian I.T. Act. THE petitioner filed a writ petition, W.P. No. 1736 of 1967 challenging the notices issued. An interim order against the enforcement of the notices was made and, ultimately, the writ petition was disposed of by consent of parties on June 6, 1969. THE parties were agreed that the payment of the outstanding amount was to be made in five equal instalments. It was spread a period of 2 1/2 years from the date of the order. THE first instalment had to be paid on July 6, 1967, the next instalment on December 12, 1969, and the remaining three instalment within the interval of six months from that day. It would appear that except for a short delay, the tax due was paid up. THE Appellate CED disposed of the appeal on March 22, 1971, and the Asst. CED made a consequential order giving effect to the order of the Appellate CED on May 18, 1971. THEre was a reduction in the tax payable about Rs. 2,000. After giving effect to the amount paid up, it transpired that there was a balance of Rs. 37,751.60 due by way of tax on May 18, 1971. It transpired that the Asst. CED made an order imposing interest on March 28, 1972. This was challenged before this court in W.P. No. 1679 of 1972. It had been contended that the proceedings taken to levy interest under s. 70(2) was untenable and the order had been made without affording an opportunity to be heard. This court by its order dated February 1, 1974, set aside that order with liberty reserved to the Asst. CED to make a fresh order after affording a reasonable opportunity to the petitioner. THEreafter, the other was made on February 17, 1975, which is challenged in this writ petition.

(3.) IT is contended by Sri Sarangan, learned counsel for the petitioner, that the proceedings taken by the respondent are without jurisdiction. His argument is that there was no mistake apparent on record which could be rectified by taking recourse to s. 61. There was no mistake on record as such and the E.D. Act does not prescribe an automatic imposition of interest on the duty payable. The only provision for imposing interest is to be found in s. 70 which consists of two clauses. IT is as follows :