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1999 DIGILAW 376 (CAL)

CONTROLLER OF ESTATE DUTY v. SAVITRI DEVI KHAITAN

1999-07-20

RANJAN KUMAR MAZUMDER, Y.R.MEENA

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( 1 ) BY this reference application, the Tribunal has referred the following questions, set out at page 2 of the application for our opinion :"1. Whether, on the facts and in the circumstances of the case, when an order under Sections 58 (3), 62/59 of the Estate Duty Act, 1953, may be either under Section 59 (a) or under Section 59 (b) of the said Act, the presumption of the Tribunal that it was passed under Section 59 (a) of the said Act is based on relevant material or arbitrary ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in cancelling the order under Section 59 (b) of the Estate Duty Act passed by the Assistant Controller of Estate Duty ?" ( 2 ) IN question No. 1, the Revenue has challenged that the presumption of the Tribunal that an order was passed under Section 59 (a) of the Act was not based on the relevant materials and the finding is arbitrary. ( 3 ) LEARNED counsel for the assessee has placed the entire paper book which was before the Tribunal. He has not pointed out any mistake in the presumption based on the materials available before the Tribunal. Therefore, so far as question No. 1 is concerned, no interference is called for. ( 4 ) IN question No. 2, the Revenue has challenged the order of the Tribunal on the ground that the Tribunal was not justified in cancelling the order under Section 59 (b) of the Estate Duty Act. ( 5 ) THE estate duty assessment was made on the estate of the late Iswari Prosad Khaitan, who died on November 6, 1981. The estate duty assessment was made by the Assistant Controller of Estate Duty on May 10, 1983, under Section 58 (3) of the Estate Duty Act, 1953. In that assessment, the Assistant Controller of Estate Duty has included 25 per cent. interest of the deceased in the firm, Ramchander Heeralal, and in that, the value of the land held by the firm, Ramchander Heeralal, was accepted at Rs. 84,652. After completion of the assessment for estate duty, the assessment was reopened under Section 59 (b) of the Estate Duty Act, 1953, on the ground that the value of the land of the firm has been shown at Rs. 84,652. After completion of the assessment for estate duty, the assessment was reopened under Section 59 (b) of the Estate Duty Act, 1953, on the ground that the value of the land of the firm has been shown at Rs. 3,63,500 for the assessment years 1978-79 to 1981-82 and added the value of land to the tune of Rs. 69,712 as the enhanced value of the land. ( 6 ) BEING aggrieved, the accountable person filed an appeal before the Appellate Controller of Estate Duty. He confirmed the inclusion of the enhanced value of the land to the extent of Rs. 31,728. In appeal before the Tribunal, the Tribunal found that the reopening of the assessment was not proper as the Assistant Controller has no information with him to reopen the assessment under Section 59 (b) of the Estate Duty Act, 1953. ( 7 ) LEARNED counsel for the Revenue, Mr. Ram Chandra Prosad, submits that in view of the decision of the Punjab and Haryana High Court in the case of Kulbushan and Brij Bhushan v. CED [1973] 88 1tr 65, if the share of the deceased is not properly being ascertained, the Assistant Controller can reopen the assessment under Section 59 of the Act of 1953. ( 8 ) LEARNED counsel for the assessee, Mr. Khaitan, submits that there was no information within the meaning of Section 59 (b) of the Act of 1953, with the Assistant Controller for reopening of the assessment. The valuation has already been disclosed for the wealth-tax and the value which has been shown for the purpose of estate duty was based on the books of account of the firm, Ramchander Heeralal. For wealth-tax, a higher figure of the value of the land of the firm, Ramchander Heeralal, has been shown in view of the provisions of Rule 2b (2) of the Wealth-tax Rules, 1957, which provides that "if the market value of the asset exceeds its written down value or its book value or value adopted for the purposes of assessment under the Income-tax Act, 1961, as the case may be, by more than 20 per cent. , the value of that asset shall, for the purpose of Rule 2a, be taken to be its market value". , the value of that asset shall, for the purpose of Rule 2a, be taken to be its market value". Therefore, the value which has been shown in the wealth-tax return was the market value and there is no such provision in the Estate Duty Act. Therefore, the accountable person has shown the value of the land of Ramchander Heeralal on the basis of the balance-sheet shown in the books of account of the firm Ramchander Heeralal. He further submits that information must be information which was not in the possession of the Assessing Officer. If it is not from the other sources, mere change of opinion cannot constitute an information for the purpose of Section 59 (b) of the Act of 1953. ( 9 ) THE admitted fact is that the accountable person has shown the value of the land from Ramchander Heeralal on the basis of the book value. The facts are also not in dispute that in the wealth-tax returns, the assessee has shown the value of the land on the basis of the market value of the land in view of the provisions of Rule 2b (2) of the Wealth-tax Rules, 1957. There is no such provision in the Estate Duty Act which requires the assessee to show the market value. The accountable person has disclosed that the firm, Ramchander Heeralal, is the owner of the land. That land has been disclosed fully and its value has been disclosed truly as per the balance-sheet of the firm. There is no information from outside. The information was already in the possession of the concerned officer having jurisdiction to assess the wealth for the purpose of wealth-tax. That value which has been disclosed in the wealth-tax return was available to the Wealth-tax Officer. Therefore, it cannot be said that after completion of the assessment for the purpose of estate duty, he received some information which reveals that some value of the deceased's property has escaped. When there is no information in the possession of the Assistant Controller for reopening of the assessment under Section 59 (b) of the Act, we find no justification to interfere with the order of the Tribunal. ( 10 ) ACCORDINGLY, we answer questions Nos. 1 and 2 in the affirmative, that is, in favour of the accountable person and against the Revenue. ( 11 ) THE reference application is, accordingly, disposed of.