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TMI Blog1964 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... testamentary and intestate jurisdiction. In the affidavit of assets, the valuation of the deceased's estate was given as Rs. 2,24,453.95 nP. The will was probated on July 12, 1956. The Probate Deputy Collector provisionally assessed the probate duty at Rs. 9.897.50 nP. Thereafter, the assessment of estate duty was taken up and the respondent-Assistant Controller assessed the value of the properties passing on the death of Nakur Chandra Sarkar at Rs. 3,56,416.00 and the estate duly thereon at Rs. 29,719.90 nP, by order dated July 31, 1957. Out of that, he made a deduction of Rs. 9,897.50 nP. under section 50 of the Act, being the amount of court-fees paid for obtaining representation to the estate, namely, the amount of probate duty, and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty totalling Rs. 14,650.00 nP. had been erroneously paid and that the estate became entitled to the refund of the excess payment. He, therefore, applied before the respondent-Deputy Controller for refund of excess payment. This petition was rejected by the respondent-Assistant Controller as time-barred. The respondent-Assistant Controller also called upon the petitioner to pay the balance of the estate duty, namely, Rs. 4,714.90 nP., which, according to him, was still due. Aggrieved by the order, the petitioner moved this court under article 226 of the Constitution, praying for a writ of certiorari for the quashing of the orders, for a writ of mandamus directing the respondents to refund the excess payment and for a writ of prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court-fees Act on December 6, 1962, by Rs. 7,256.67 nP. The question for my consideration is whether the Assistant Controller was bound himself to take notice of this increase and amend the assessment of estate duty accordingly or whether the petitioner was required to move him, within the period of limitation, for rectification of assessment on the ground of subsequent increase in probate duty and thus get a reduction. Mr. B. C. Dutt, learned advocate for the petitioner, no doubt very strongly urged that the respondent-Assistant Controller should have himself made the rectification, because the petitioner was entitled to reduction of the entire amount of probate duty as a matter of law. Even if Mr. Dutt is correct in his argument, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the amending Act of 1958) reads as follow : "61. At any time within five years from the date of any order passed by him or it, the Controller, the Appellate Controller or the Appellate Tribunal may, on this or its own motion rectify any mistake apparent from the record and shall, within a like period, rectify any such mistake which has been brought to the notice of the Controller, the Appellate Controller or the Appellate Tribunal, as the case may be, by the person accountable : Provided that no such rectification shall be made which has the effect of enhancing the estate duty payable unless the person accountable has been given a reasonable opportunity of being heard in the matter." It will appear from the new section 61 that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, after the reduction of valuation of the estate in appeal (which of course I do not hold), the application may not be barred by time but than the result of the appeal was that the power of rectification in the Assistant Controller was gone. In my opinion, however, the first determination of the duty was the first determination in the order of chronology, that is to say, on July 31, 1957, and not the reduction thereof after the reduction of calculation as a result of the appellate judgment. In that view, I hold that the application for rectification and the claim for refund non rectification were clearly barred by time. Also there was no proper application for rectification. The letter dated December 19, 1962, was not addressed to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the record of the estate duty assessment but he would be changing his opinion about the valuation of the estate because some other authority had valued the estate differently. For the purpose of section 61, it was further held, the only record that the assessing authority was required to look into was the record relating to the estate duty and not any other record, such as the record of the probate proceeding. It is not necessary for me, in this case, to go so far as the Mysore High Court did. What probate duty is payable or has been paid can never be made part of the estate duty records, unless the probate duty has been assessed and paid and the evidence of payment has been put on the record of the estate duty proceedings. If the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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