9911796707
TMI Blog1988 (3) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... 1953 under the application under section 61 of ED Act. 2. That in doing so he has failed to appreciate that when all the connected material was on record even if accountable person has not claimed in the return it was the duty of the learned Assistant Controller of Estate Duty to allow the claim hence it was a mistake apparent from record rectifiable under section 61 of Estate Duty Act, 1953." 2. Late Shri K.N. Kaula unfortunately expired on11-12-1964. The deceased had 1/2 share in the residential house bearing No. 7,Sikandra Road,New Delhi. Vide the assessment order dated13-8-1985, framed under section 58(3) of the Act the value of the deceased's share in the property was accepted at Rs. 1,50,000. 3. Subsequently the accountable pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in my view the ACED is quite justified in rejecting the claim as this cannot be called a mistake apparent from records and, therefore, cannot be rectified under section 61 of the Estate Duty Act. Their Lordships of High Court of Allahabad in the case of Anchor Pressing (P.) Ltd v. CIT [1975] 100 ITR 347 and Sharda Prasad v. CIT [1975] 100 ITR 373 held that deductions or rebates, although legally allowable but not claimed or allowed do not constitute mistake apparent from record." 6. Therefore the present appeal before us by the accountable person, inter alia, on the grounds mentioned hereinbefore. On behalf of the appellant the submissions earlier made before the lower authorities were repeated and reliance was also placed on the ratio in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons refused to interfere. He further noted the ratios in the cases of Anchor Pressings (P.) Ltd. and Sharda Prasad. The 1st case was under section 154 of the IT Act, 1961. No claim by way of rebate was made and subsequently the assessee in that case moved under section 154 of the Act which was rejected and such rejection was confirmed by the Hon'ble Allahabad High Court observing that the said section was not meant for preferring a claim which the assessee had omitted to prefer in the assessment proceedings. The ratio in the case of Sharda Prasad was also the same which in fact was recorded after following the ratio in the case of Anchor Pressings (P.) Ltd. 8. The revenue's case before us is that exemption was not claimed and thus applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of subsequent date, in our view, requires to be followed. Moreover where there are two views, possible normally one in favour of the citizen is required to be followed. In the case before us it is not in dispute that the learned Asstt. Controller of Estate Duty indeed overlooked mandatory provision of law, i.e., he did not consider the provision of section 33(1)(n). Thus that omission resulted in an apparent and rectifiable mistake, in respect of which the learned Asstt. Controller of Estate Duty had neither option nor discretion but had to rectify. Thus, in our view, the learned Asstt. Controller of Estate Duty instead of denying the exemption, should have looked into the assessee's claim with respect to the facts placed on record or to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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