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1986 DIGILAW 52 (CAL)

Controller Of Estate Duty v. Shyamal Bikash Sett

1986-02-06

D.K.Sen, M.G.Mukherji

body1986
JUDGMENT 1. THIS is a reference under Section 64 (1) of the Estate Duty Act, 1953 at the instance of the revenue. 2. THE question of law that have been referred to are as follows:- 1. Whether, on the facts and circumstances of the case, the Tribunal was right to holding that Sri Shyamal Bikas sett was entitled to prefer an appeal against the order of the Assistant Controller of Estate Duty before the appellate Controller under section 62 of the Estate duty Act, 1953 ? If the answer to the question No. 1 be in the affirmative then : 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the appeal filed by Shyamal Bikash Sett before the Appellate controller without its being accompanied by a certified copy of the assessment order or the demand notice, was proper. One Sushil Kumar Sett died on September 20, 1964. An assessment under the Estate Duty Act was made on March 31, 1969. This was pursuant to a statement of account of the Estate filed by one Swarup Bikash Sett the eldest son of the deceased. Shyamal Bikash Sett, the youngest son of Sushil and a step brother of Swarup filed an application before the Assistant controller of Estate Duty on 3rd September, 1969 for a copy of the assessment order and the notice of demand. The Assistant controller replied on 13th October 1969 that he could not be given a copy of the assessment order and the Notice of demand since neither the Return had been filed by Shyamal nor his name appeared on the assessment order. 3. SHYAMAL, however, filed the appeal without the relevant assessment order or the demand notice on 29. 10. 1969. . The Appellate Controller held that the eldest and the major brother in the joint family viz. Swarup had authority to deliver an account of his deceased father's estate and the appeal by Shyamal could not be entertained as it was not filed by one who had been recorded in the departmental proceedings as an accountable person. 4. SHYAMAL preferred a further appeal before the Tribunal and submitted, inter alia, that the dismissal of the appeal by the Appellate Controller was arbitrary and illegal and that he should have gone into the merits of the appeal. 4. SHYAMAL preferred a further appeal before the Tribunal and submitted, inter alia, that the dismissal of the appeal by the Appellate Controller was arbitrary and illegal and that he should have gone into the merits of the appeal. The legality of the assessment was also questioned before the Tribunal on the ground that where an assessment was made, all the legal representatives ought to have been served with the order of assessment and in the absence of such a service, the entire assessment should be regarded as void. The revenue contended that Shyamal had not featured at any stage of the assessment proceedings and therefore was incompetent to prefer any appeal. The Tribunal however held him to be a person who as a son of the deceased was entitled to be deemed as an accountable person under Section 53 of the Act and as such Shyamal was also entitled to impugn the assessment. The Tribunal however did not think it necessary to decide the question as to whether the assessment was proper and legal, since it would be a matter to be decided in all finality by the Appellate Controller, once the appeal was held to be competent. The further contention of the revenue was that even if an appeal of Shyamal was entertainable, as one filed by a competent person, still the appeal was not properly filed before the Appellate Controller. The Tribunal found it evident from the letter dated 13. 10. 1969 that Shyamal Bikash Sett had not been furnished with the assessment order or the notice of demand. The Tribunal held that depriving Shyamal an opportunity to get the said documents would be negating his right to prefer an appeal. The Tribunal thus rejected the objection and restored the appeal to the file of the Appellate Controller, directing the Appellate Controller to consider the appeal on merits in accordance with law. The Controller of Estate Duty thereafter initiated this reference being under Section 64 (1)of the Estate Duty Act 1953. 5. THE main contention of the revenue was that Shyamal was not the person who had filed the return. The return was filed by his elder step-brother Swarup Shyamal not having appeared at any stage of the assessment proceedings it was contended that he had been properly excluded from filing or participating in any appeal. We are unable to accept this contention. The return was filed by his elder step-brother Swarup Shyamal not having appeared at any stage of the assessment proceedings it was contended that he had been properly excluded from filing or participating in any appeal. We are unable to accept this contention. However Section 53 (1) (a) of the Act provides that every legal representative to whom the property of the deceased passes shall be "accountable" for the whole of the Estate Duty, though he might have received a part of the estate. Shyamal, as a son on the deceased was admittedly an accountable person under the Dayabhaga School of Hindu Law by which the deceased was governed on intestate succession. Section 62 of the Act provides for appeals against orders of the Controller. Any person objecting to any of the items as set out in clauses (i) to (iv) of the said section 62 could prefer an appeal. Obviously a person having some interest in tine estate, has been conferred with a right of appeal against the order of the Controller. Thus shyamal is an accountable person under section 53 of the Act and having an interest in the estate has a right to prefer an appeal against the assessment. The fact that his elder brother also an accountable parson filed the return when Shyamal was a minor would not take away such right. 6. UNDER the general law whether a person is a party to a proceeding or not, he would have a right to prefer an appeal against a judgment or order which prejudicially or adversely affects him. We are thus of the opinion that the order of the Tribunal is correct and lawful and calls for no interference from us. 7. FOR the reasons above question No. 1 is thus answered in the affirmative in favour of the assessee and against the revenue. The second question is also answered in the affirmative in favour of the assessees and against the revenue. There will be no order as to costs. Reference rejected.