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Supreme Court of India

CONTROLLER OF ESTATE DUTY, GUJARAT I,AHMEDABAD vs M.A. MERCHANT ACCOUNTABLE PERSON OFLATE SHRI A.G MERCHANT on 2 May, 1989

Cites 1 provisionsCites 0 judgmentsCited by 4
Official PDFBench Raghunandan Swarup Pathak (presiding), Sabyasachi Mukherjee
PETITIONER:
CONTROLLER OF ESTATE DUTY, GUJARAT I,AHMEDABAD.
Vs.
RESPONDENT:
M.A. MERCHANT ACCOUNTABLE PERSON OFLATE SHRI A.G MERCHANT, M
DATE OF JUDGMENT02/05/1989
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
MUKHARJI, SABYASACHI (J)
CITATION:
1989 AIR 1710 1989 SCR (2) 987
1989 SCC Supl. (1) 499 JT 1989 (3) 177
1989 SCALE (1)1479
ACT:
Estate Duty Act, 1953: Sections 56-65--Valuations for
estate duty--Rectification of mistake--Reopening of assess-
ment made under section 59--Permissibility of--Effect of the
Estate Duty (Amendment) Act, 1958.
HEADNOTE:
The respondents who were the accountable persons filed
returns under the Estate Duty Act. 1953, and an assessment
was made by the Deputy Controller of Estate Duty--Appellant
on 26th February. 1960.
The Estate Duty (Amendment) Act, 1958 repealed the
original sections 56 to 65. Section 59 which substituted for
the original section 62 made provision for re-assessment. It
came into force with effect from 1st July, 1960.
On 21st February, 1962, a notice under the new section
59 of the Act was issued to the respondents for re-opening
the assessment on the ground that some property had escaped
the levy of estate duty. The respondents raised objections
Controller, .....
(a) has reason to believe that by
reason of the omission or failure on the part
of the person accountable to submit an account
of the estate of the deceased under Section 53
or Section 56 or to disclose fully and truly
all material facts necessary for assessment,
any property chargeable to estate duty has
escaped assessment by reason of undervaluation
of the property included in the account or of
omission to include therein any property which
ought to have been included or of assessment
at too low a rate or otherwise, or
(b) has, in consequence of any infor-
mation in his possession, reason to believe
notwithstanding that there has not been such
omission or failure as is referred to in
clause (a) that any property chargeable to
estate duty has escaped assessment, whether by
reason of under-valuation of the property
included in the account or of omission to
include therein any property which ought to
have been included, or of assessment at too
low a rate or otherwise, he may at any time,
subject to the provisions of section 73A,
require the person accountable to submit an
account as required under section 53 and may
proceed to
assess or reassess such property as if the
provisions of Section 58 applied thereto."
The High Court considered the question of law referred
to it at great length and after a detailed judgment answered
the question in each case in favour of the assessee.
The Revenue now appeals.
The question is whether the newly enacted s. 59 of the
Estate Duty Act is retrospective in operation so as to
affect the assessment already completed on the accountable
persons. It is urged that the new s. 59 is substantially
similar in content as the old s. 62 and therefore the new
provision must be regarded as retrospective. The contention
may be examined.
The Estate Duty (Amendment) Act, 1958 effected a sub-
stantial change in the parent Act. Ss. 56 to 65 were substi-
tuted in place of the existing ss. 56 to 65, and the origi-
nally enacted s. 62 was repealed. The original s. 62 provid-
ed essentially for the rectification of mistakes apparent
from the record or in the valuation of any property or by
reason of the omission of any property. The newly enacted s.
59 deals with property escaping assessment. The provision is
analogous to s. 34 of the Indian Income Tax Act, 1922 and s.
147 of the Income Tax Act, 1961. It seems to us that the new
s. 59 endeavours to cover a substantially different area
from that treated by the old section 62. The only area which
seems common to the two provisions relates to the "omission
of any property", but it seems to us that the incidents of
the power under s. 62 relate to a situation materially
different from the incidents of the power contemplated under
s. 59. The High Court has closely analysed the provisions of
the two sections and has come to the conclusion that the
power of reassessment conferred by the new s. 59 is quite
different from the power conferred by the old s. 62. We are
in agreement with the High Court. The contention on behalf
of the Revenue based on the identity alleged between the new
s. 59 and the old s. 62, and that, therefore, the new sec-
tion should be regarded as retrospective cannot be accepted.
As .it stands, there are no specific words either which
confer retrospective effect to s. 59. To spell out retro-
spectivity in s. 59, then, there must be something in the
intent to s. 59 from which retrospective operation can be
necessarily inferred. We are unable to see such intent. The
new s. 59 is altogether different from the old s. 62 and
there is nothing in the new s. 59 from which an intent to
give retrospective effect to it can be concluded.
The new s. 59 came into force from 1 July, 1960. Much
earlier, on 26 February, 1960 the assessment on the account-
able person had already been completed. There is a well
settled principle against interference with vested rights by
subsequent legislation unless the legislation has been made
retrospective expressly or by necessary implication. If an
assessment has already been made and completed, the assessee
cannot be subjected to re-assessment unless the statute
permits that to be done. Reference may be made to Controller
of Estate Duty, West Bengal v. Smt. IIa Das and others,
[1981] 132 I.T.R. 720 where an attempt to reopen the Estate
Duty assessment consequent upon the insertion of the new s.
59 of the Estate Duty Act was held infructuous.
We hold that s. 59 of the Estate Duty Act is not retro-
spective in operation and that the reopening of the assess-
ment under s. 59. of the Act is bad in law.
In the result the appeals fail and are dismissed with costs.
N.V.K. Appeals dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2-4 of 1975.

From the Judgment and Order dated 8th 9th November 1973 of the Gujarat High Court in Estate Duty Reference Nos. 2, 3 and 4 of 1971. Dr. V. Gauri Shankar and Miss A. Subhashini for the Appellant.

V.S. Desai, Mrs. A.K. Verma and Joel Peres for the Respondents. The Judgment of the Court was delivered by

PATHAK, CJ. The facts in these appeals lie within a narrow compass. One Abdulhussein Gulamhussein Merchant died on 8 February, 1959. The accountable persons filed returns under the provisions of the Estate Duty Act, 1953 and an assessment was made by the Deputy Controller of Estate Duty on 26 February, 1960. The Estate Duty (Amendment) Act, 1958, repealed the original sections 56 to 65. Section 59, which substituted for the original s. 62, made provision for reassessment. It came into force with effect from 1 July 1960. On 21 February, 1962 a notice under the new s. 59 of the Act was issued to the accountable person concerned for reopening the assessment on the ground that some property had escaped the levy of estate duty. The accountable persons raised objections to the reopening of the assessment under s. 59. The Assistant Controller rejected the contentions of the accountable persons and reopened the assessment. Against the order of reassessment the accountable persons filed three different appeals before the Appellate Controller. The Appellate Controller allowed the appeals and set aside the reassessment orders holding that s. 59 under which action had been taken by the Assistant Controller was not retrospective in operation. On appeal by the Revenue, the Tribunal upheld the view of the Appellate Controller relying on the decision of the Bombay High CoUrt in A.N. Mafatlal v. Deputy Controller of Estate Duty, [1968] 67 I.T.R. 449. Thereafter three references were made to the High Court at the instance of the Revenue raising the identical question:

"Whether Section 59 of the Estate Duty Act,

1953 is retrospective in operation and if so,

in the facts and circumstances of the case,

the reopening of the assessment under s. 59 of

the said Act was bad in law?" Section 62 as originally enacted read as follows:

"Rectification of mistakes relating to valua-

tion for estate duty:, (1) If, after the

determination of the estate duty payable in

respect of any estate, it appears to the

Controller that by reason of any mistake

apparent from the record or of any mistake in

the valuation of any property in any case

other than a case in which the valuation has

been the subject matter of an appeal under the

Act or of the omission of any property, the

estate duty paid thereon is either in excess

of or less than the actual duty payable, he

may, either on his own motion or on the appli-

cation of the person accountable and after

obtaining the previous approval of the Board,

at any time within three years from the date

on which the estate duty was first

determined--

(a) refund the excess duty paid, or, as

the ease may be,

(b) determined the additional duty

payable on the property;

Provided that where the person

accountable had fraudulently under-estimated

the value of any property or omitted any

property, the period will be six years:

Provided further that no order shall

be made under this sub-section unless the

person accountable has been given an opportu-

nity of being heard.

(2) Nothing contained in sub-section (1) shall

render any. person accountable to whom a

certificate that the estate duty has been paid

is granted liable for any additional duty in

excess of the assets of the deceased which are

still in his possession, unless the person

accountable had fraudulently attempted to

evade any part of the estate duty in the first

instance."

The provisions of section 59 introduced by the Amendment Act of 1958 are as follows:

"59. Properly escaping assessment.’ If the

Controller, .....

(a) has reason to believe that by

reason of the omission or failure on the part

of the person accountable to submit an account

of the estate of the deceased under Section 53

or Section 56 or to disclose fully and truly

all material facts necessary for assessment,

any property chargeable to estate duty has

escaped assessment by reason of undervaluation

of the property included in the account or of

omission to include therein any property which

ought to have been included or of assessment

at too low a rate or otherwise, or

(b) has, in consequence of any infor-

mation in his possession, reason to believe

notwithstanding that there has not been such

omission or failure as is referred to in

clause (a) that any property chargeable to

estate duty has escaped assessment, whether by

reason of under-valuation of the property

included in the account or of omission to

include therein any property which ought to

have been included, or of assessment at too

low a rate or otherwise, he may at any time,

subject to the provisions of section 73A,

require the person accountable to submit an

account as required under section 53 and may

proceed to

assess or reassess such property as if the

provisions of Section 58 applied thereto."

The High Court considered the question of law referred to it at great length and after a detailed judgment answered the question in each case in favour of the assessee. The Revenue now appeals.

The question is whether the newly enacted s. 59 of the Estate Duty Act is retrospective in operation so as to affect the assessment already completed on the accountable persons. It is urged that the new s. 59 is substantially similar in content as the old s. 62 and therefore the new provision must be regarded as retrospective. The contention may be examined.

The Estate Duty (Amendment) Act, 1958 effected a substantial change in the parent Act. Ss. 56 to 65 were substituted in place of the existing ss. 56 to 65, and the originally enacted s. 62 was repealed. The original s. 62 provided essentially for the rectification of mistakes apparent from the record or in the valuation of any property or by reason of the omission of any property. The newly enacted s. 59 deals with property escaping assessment. The provision is analogous to s. 34 of the Indian Income Tax Act, 1922 and s. 147 of the Income Tax Act, 1961. It seems to us that the new s. 59 endeavours to cover a substantially different area from that treated by the old section 62. The only area which seems common to the two provisions relates to the "omission of any property", but it seems to us that the incidents of the power under s. 62 relate to a situation materially different from the incidents of the power contemplated under s. 59. The High Court has closely analysed the provisions of the two sections and has come to the conclusion that the power of reassessment conferred by the new s. 59 is quite different from the power conferred by the old s. 62. We are in agreement with the High Court. The contention on behalf of the Revenue based on the identity alleged between the new s. 59 and the old s. 62, and that, therefore, the new section should be regarded as retrospective cannot be accepted.

As .it stands, there are no specific words either which confer retrospective effect to s. 59. To spell out retrospectivity in s. 59, then, there must be something in the intent to s. 59 from which retrospective operation can be necessarily inferred. We are unable to see such intent. The new s. 59 is altogether different from the old s. 62 and there is nothing in the new s. 59 from which an intent to give retrospective effect to it can be concluded.

The new s. 59 came into force from 1 July, 1960. Much earlier, on 26 February, 1960 the assessment on the accountable person had already been completed. There is a well settled principle against interference with vested rights by subsequent legislation unless the legislation has been made retrospective expressly or by necessary implication. If an assessment has already been made and completed, the assessee cannot be subjected to re-assessment unless the statute permits that to be done. Reference may be made to Controller of Estate Duty, West Bengal v. Smt. IIa Das and others, [1981] 132 I.T.R. 720 where an attempt to reopen the Estate Duty assessment consequent upon the insertion of the new s. 59 of the Estate Duty Act was held infructuous.

We hold that s. 59 of the Estate Duty Act is not retrospective in operation and that the reopening of the assessment under s. 59. of the Act is bad in law. In the result the appeals fail and are dismissed with costs. N.V.K. Appeals dismissed.