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TMI Blog1992 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... nue till the appellant attained majority. On December 7, 1970, the appellant attained majority. As karta, he applied to the City Civil Court at Calcutta for the grant of a succession certificate in respect of the estate of Ganga Singh. It appears that the guardian never filed the account of the property or the return as required under section 53 or 56 of the Estate Duty Act, 1953 (hereinafter referred to as "the Act"). The appellant, being a minor, did not know about this. The result is that no account had been filed by any person in respect of the estate of Ganga Singh within five years from the date of his death. In the proceedings before the City Civil Court for the grant of succession certificate, it was pointed out that a certificate from the estate duty authority was necessary under section 56(2) of the Act. It was urged on behalf of the appellant that, in view of section. 73A of the Act, the time to commence any proceedings for levy of estate duty had become barred inasmuch as five years had expired from the date of death of Ganga Singh. Hence, the question of production of certificate under section 56(2) would not arise. By an order dated July 25, 1972, the learned Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction placed by the Division Bench is totally incorrect. Section 73A is comprehensive in its scope in so far as it throws a statutory bar preventing the authority from commencing any proceeding after the expiry of five years. Having regard to the use of the words "under this Act", that will take within it section 56 also. If, in any case of this character, the appellant is required to produce a certificate from the Controller, it will be requiring him to do the impossible. In respect of his submission, he would place reliance on the ruling of the Allahabad High Court in CED v. Bhola Dutt [1981] 130 ITR 468. That was a case when the proceeding was sought to be commenced on the basis of a return filed by the accountable person voluntarily after five years. The High Court held that the Assistant Controller had no jurisdiction because of the expiry of limitation. It is that ratio which has to be adopted in this case. If the interpretation placed by the High Court is accepted, it would amount to putting a premium on the laches of the authority and enabling it to do something indirectly which it cannot do even directly. The view of the High Court that no grant of representation or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case only with clause (a). Therefore, the fourth qualification will be after the expiration of five years from the date of death of the deceased. The language, in our considered view, is unambiguous. This section throws a statutory bar and is comprehensive in nature. In so far as it says "no proceeding under this Act" that means no proceeding whatever in relation to levy can ever be commenced after five years. The word "levy" in Black's Law Dictionary (fifth edition) at page 816 is stated thus: "Levy, v. To assess ; raise ; execute ; exact ; tax ; collect gather; take up ; seize. Thus, to levy (assess, exact, raise, or collect) a tax to levy (raise or set-up) a nuisance ; to levy (acknowledge) a fine ; to levy (inaugurate) war ; to levy an execution, i.e., to levy or collect a sum of money on an execution." As a matter of fact, in Padampat Singhania [1980] 122 ITR 162 (All) the meaning of this word under this very Act came to be laid down which is extracted as under (at page 166) : "The word 'levy' has been interpreted by the Supreme Court in the case of Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd., AIR 1972 SC 2563, as embracing within it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it applies in limited circumstances. Sub-section (1) of section 56 applies to a case where the executor of the deceased wants a representation certificate. Then alone he is required to file an account of the properties of the deceased to the Controller. Under subsection (2), the accountable person is required to produce a certificate from the Controller stating that the requisite estate duty has been paid in respect of the property for which a succession certificate is applied for. Proceedings under section 56 commence when someone desires to have a representation certificate or a succession certificate, not otherwise. In the present case, none of the two situations has occurred. We are, therefore, clear that the assessment proceedings were invalid and were rightly quashed by the Tribunal." We think the High Court is right in its approach. In opposition to this, what is relied on is the case in P. C. Saxena [1976] 104 ITR 106 (Delhi). It is sufficient to extract the headnote : "In 1966 the appellant applied in the court of the Subordinate judge for grant of a succession certificate to realise various debts and securities of the deceased who had died on October 28, 1959. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that none is due, as the case may be. (2) In all cases in which a grant of a 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 certificate shall be made upon his application until he has produced 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." No doubt, both under sub-section (1), clause (b) and sub-section (2), the language used is "no order shall be made upon his application". To require in a case of this character the production of a certificate from the Controller would amount to the insistence upon an impossible compliance. The view of the Division Bench of the High Court is unacceptable to us when it holds that section 73A is applicable only to proceedings initiated under section 59. Merely because section 59 says "subject to section 73A", that does not mean a statutory bar under section 73A is lifted. On the contrary, section 59 reinforces the rigour of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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