Whether an order u/s 61 of the Estate Duty Act is appealable. - Income Tax - 1297/CBDT

INSTRUCTION NO. 1297/CBDT Dated : December 21, 1979 Section(s) Referred: 61 Statute: Estate Duty Act A number of references arising from tribunal and High Court Judgments have been received on the question as to whether an order u/s 61 of the Estate Duty Act is appealable in view of the fact that such an order is not one of those enumerated in sec.62 of the Act. 2. The matter was recently examined in consultation with the Ministry of Law in respect of an adverse ITAT judgment. The Ministry of Law opined that the order u/s 61 is applicable in view of the following:- (i) The general rule is that a person has no inherent right of appeal. The right of appeal is a creature of statute and has to be expressly conferred. (ii) Section 62 of the ED Act provides for an appeal against the order of the Controller and lists the orders against which an appeal may be filed. (iii) An appeal against an order u/s.61 does not fall within any of the orders enumerated in clause (b) of sub-section (1) of section 62. (iv) However, the residuary provision-clause (b) is sufficiently wide. The individual's liability to estate duty has been altered to his detriment by the purported order of rectification. Since he denies his liability to the amount of estate duty, an appeal would lie under this clause. No doubt the clause further uses the expression 'in respect of any property'. The order in question is not in respect of the property as such but only in respect of the quantum of duty. Still, since it would be relatable to the property passing on death, it would appear that the correct view is in holding that a rectification order u/s 61 is appealable. (v) Otherwise, the result would be that an accountable person would be left without any remedy when the Controller purporting to rectify an error enhances his liability to duty. Such a construction is not to be favoured. 3. The above should be brought to the notice of all the officers working in your charge for guidance and necessary action. You are further requested to withdraw all pending appeals filed before the ITAT and High Court etc. on this point.