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TMI Blog1975 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... itions. These petitions were allowed by the subordinate judge (exercising jurisdiction) by orders dated 30th April, 1968. On the material on record, he allowed the petition and ordered the grant of succession certificate subject to the production of a certificate of clearance in respect of the estate duty of the deceased under section 56(2) of the Estate Duty Act. It is common ground that the appellant has neither applied for nor obtained the requisite certificate. On the other hand, he has moved an application giving rise to the present appeals to the court below alleging that under section 73A of the Estate Duty Act, 1953, no proceedings can be commenced for levy of estate duty on the estate of the deceased after the expiry of five years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 that the estate duty payable in respect of the property included in the account has been or will be paid, or that none is due, as the case may be. (2) In all cases in which a grant of succession certificate is applied for, a copy of the application shall be furnished by the applicant to the Controller and no order entitling the applicant to the grant of such a certificate shall be made upon his application until he has produced a certificate from the Controller under sub-section (2) of section 57 or section 67 that the estate duty payable in respect of the property mentioned in the application has been or will be paid, or that none is due, as the case may be. " The Act 34 of 1953 before its amendment had a corresponding section wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at any time after the receipt of account delivered under section 53 or section 56, proceed to make in a summary manner a provisional assessment of the estate duty payable by the person delivering the account on the basis of the account so delivered (emphasis supplied). Sub-section (4) also provides that no appeal shall lie against a provisional assessment. Section 60 has made a provision for levy of a penalty for failure to comply with the provisions, inter alia, of section 56, It is significant to notice that in section 59 a provision has been made that if the Controller 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for levy of estate duty. But, should a party approach the court for grant of succession certificate and should the application be within time and otherwise in order, a mandatory duty has been cast on the party to furnish a copy of the accounts in cases governed by clauses (a) and (b) of sub-section (1) and a copy of the application under sub-section (2) of section 56 to the Controller. In either case, whether governed by sub-section (1) or sub-section (2), the party is bound to produce a certificate from the Controller to the effect that estate duty has been or will be paid or that none is due. The civil court does not possess any jurisdiction or discretion to waive the aforesaid condition which is precedent to the grant of representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is not existent) and then the application will have to be dismissed as barred by time, or if there is no limitation for such an application, a party can conveniently be enabled to obtain the succession certificate by ignoring and bypassing the mandatory provisions of law to pay the estate duty by sheer laches and delay on his part for a period of five years. Either of the aforesaid results is repugnant to the clear provisions of the statute and the objects underlying them. My observations about the non-application of section 73A to voluntary payments of the estate duty by a party must necessarily be tentative because the authorities under the Estate Duty Act art, not represented before me. I have, however, no doubt that, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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