TMI Blog1996 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that since the GTO has applied for rectification on 10th Dec., 1987, prior to 17th Jan., 1988, the rectification order passed by the AAC subsequent to 17th Jan., 1988, is within time ? 4. Whether, on the facts and in the circumstances of the case, is not the order of the Tribunal wrong in upholding the rectification, since a specific direction has been given by the AAC in his order of 17th Jan., 1984, after fully considering the implications of s. 50A of the ED Act ?" The first three questions relate to the question of limitation regarding initiation of rectification proceedings and the last question relates to the upholding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly proceed on the basis that rectification is within the limitation, making it clear that we have not considered the question of limitation in any way. The late George Joseph made gifts of immovable properties to his children. One of them-Sri David Joseph-is concerned with this proceeding as an applicant. This was in pursuance of the deed of settlement dt. 22nd May, 1972. The value of the property in question is Rs. 48,000. The authority under the GT Act, 1958, issued notice under s. 16(1) of the Act on 16th Jan., 1979, which was served on 22nd Jan., 1979, on the present applicant who is the son and the legal heir of the late George Joseph. It appears that no return was filed in pursuance of the above notice. The GTO completed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everse. The estate duty assessment had already been completed. The gift-tax assessment took place only subsequently. Hence, the procedure laid down as a safeguard against the double taxation is not available as such for application to the facts of this case. The proper course in the circumstances appears to me is to give a direction to the GTO to collect the gift-tax due by adjustment from the estate duty already paid. I shall direct the GTO to take up the matter with the Asstt. CED, Ernakulam, and do the needful in this regard." It would thus appear that, on the merits the value fixed is not abnormally high is an undisputed position. The assessment being old, remand is sought to be avoided with regard to the procedural illegalities. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958 (18 of 1958), in respect of a gift of any property and the property also is included in the estate of the donor as property passing under this Act, then, notwithstanding any thing contained in this Act, the estate duty payable under this Act shall be reduced by an amount equal to the amount of gift-tax paid in respect of any such property under that Act." A bare reading of the above statutory provision would show that the appellate authority was more than justified to observe the normal procedure to be adopted. If the normal procedure is adopted and the proceedings under the GT Act, 1958, see the end not only in fixing the amount of gift-tax, but also the payment thereof, the above statutory provision could be appreciated in the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced hereinbefore. It is observed that the said provision presupposes the payment of the gift-tax from the estate duty payable or paid. It is observed that in such a situation, to do the needful, the order of the appellate authority referred to hereinbefore requires substitution by the following passage : "The proper course in the circumstances would be for the appellant to pay gift-tax determined in the assessment and the request for rectification of the estate duty assessment for refund of the gift-tax paid. The GTO is directed to modify the gift-tax assessment after giving effect to the reductions indicated in para. 3 of the appellate order." Reading the substitution it would be at once clear that the assessee would have to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en included in the estate passing on death. In our further judgment, this position is a complete satisfaction of the statutory provisions of s. 50A of the ED Act. What remains is a problem of adjustment and in regard to this we feel that once, as to be found in para 5 of the order (annexure C), the powers of the AAC are wide and there is no doubt in regard thereto, this does not spell out a case for rectification. There is no error apparent on the face of the record even after taking into consideration the statutory provisions of s. 50A of the ED Act, 1953. In our judgment, the AAC, Trivandrum, in passing the order (Annexure-C) trying to rectify the situation and also the order of the Tribunal in regard thereto (para 9 thereof) are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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