TMI Blog1962 (8) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 1962, purporting to rectify the original order of assessment made by him on March 27, 1957. It is contended that the Assistant Controller of Estate Duty had no jurisdiction to pass the order in question. The relevant facts are as follows: The petitioner is the widow of one Mr. H.P.P. Rodrigues who died on August 4, 1955, leaving behind him a vast estate. In respect of the estate left by the deceased, the petitioner, who was the execturix of the will left by Mr. Rodrigues, submitted a return. After scrutinising the return made and after examining the materials collected by the officers of the department appointed under section 41 of the Estate Duty Act, 1953 (to be referred to as the Act hereinafter), the Deputy Collector of Estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,87,060. This valuation evidently came to the knowledge of the Assistant Controller of Estate Duty, Bangalore. Thereafter, he issued a notice on October 31, 1961, purporting to act under section 61 of the Act. The contents of that notice are important and, therefore, I shall quote the same: The net principal value of the estate passing on the death of the deceased was determined at ₹ 6,36,837 for estate duty purposes. But the valuation of the estate passing on the death of the deceased came up before the District Judge in Case No. RIA/13 of 59 in C.P. 21 of 56 wherein it was decided by the District Judge by his order dated 30th June, 1960, that the net value of the estate works out at ₹ 7,87,060. Thus, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it is clear that at the first instance the Controller did come to his own conclusion as regards the value of the estate. He has made the change, which is the subject-matter of challenge in this petition, not because he found any mistake apparent from the records of assessment, but because he thought that his valuation was an under-valuation in the light of the valuation made by the learned District Judge. Can this be justified under section 61 of the Act? Section 61 reads as follows: 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 his or its own motion, rectify any mistake apparent from the record and shall, within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. The power of rectification may be exercised subject to two conditions: (1) that there is a mistake apparent from the record of the assessment, and (2) that the order of rectification is made within four years from the date of the assessment sought to be rectified. The mistake which may be rectified need not be in the order itself; it may be in any part of the record or proceeding of assessment of the assessee. But for the purpose of assessment an individual and a firm are distinct entities and even if an individual is a partner of the firm, a mistake discovered because of something contained in the assessment of the firm is not a mistake apparent from the record of the assessment of the individual partner. In Lakshminarayana Chetty v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Supreme Court in Income-tax Officer, Alwaye v. Asok Textiles Ltd. [1961] 41 I.T.R. 732; [1961] 3 S.C.R. 236 That case is clearly distinguishable. In that decision, the Supreme Court held that the Income-tax Officer can, under section 35 of the Act, examine the records and if he discovers that he has made a mistake, he can rectify the error, and the error which can be corrected may be an error of fact or an error of law. In that case, the scope of section 35 of the Income-tax Act vis-a-vis the scope of Order 47, rule 1, of the Code of Civil Procedure, was considered by the court. I do not think that decision is of any assistance in deciding the controversy mentioned above. On the facts and circumstances found by the Assistant Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act shall be commenced-- (a) in the case of a first assessment, after the expiration of five years from the date of death of the deceased in respect of whose property estate duty became payable; and (b) in the case of a reassessment, after the expiration of three years from the date of assessment of such property to estate duty under this Act. In the present case, the department could take no assistance from section 59 in view of the bar of limitation provided under section 73A. As already stated, the case does not fall within the ambit of section 61. The learned counsel for the revenue contended that though ordinarily record would mean record of assessment , in the case of estate duty, the record of the probate proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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