TMI Blog1992 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... h certificate could be issued in view of the statutory bar under section 73A. In this context, section 56 will have to be given meaning And life. He who clings to the letter of the law clings to the dry bone ; that would be against the spirit of the Act. Appeal allowed. - - - - - Dated:- 12-5-1992 - Judge(s) : S. MOHAN., G. N. RAY JUDGMENT The judgment of the court was delivered by MOHAN J.-This appeal by special leave is directed against the judgment and order of the Calcutta High Court dated March 16, 1979, in Appeal No. 348 of 1973 ( [1980] 124 ITR 587). The facts are that on February 6, 1967, one Ganga Singh, governed by the Mitakshara school of Hindu law, died intestate. He left two sons, the appellant and one Binod Singh. The wife of Ganga Singh had predeceased him. As the appellant and Binod Singh were minors at the time of death of Ganga Singh, the maternal uncle of the appellant moved an application in the City Civil Court at Calcutta in March, 1967, for the appointment of a guardian of the appellant and his brother. Accordingly, he was appointed as the guardian. When the paternal uncle of the appellant and his brother appealed against the order, the, appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Court of Calcutta by way of a writ petition in Matter No. 417 of 1972. The learned single judge making the rule absolute held that the impugned notice under section 58(2) of the Estate Duty Act, 1953, dated September 4, 1972, was cancelled by a writ of mandamus. Aggrieved by the said order, the first respondent took up the matter in appeal. The Division Bench considered the scope of section 73A vis-a-vis section 56 and concluded that section 73A does not do away with the liability of an accountable person for payment of duty. It only bars the initiation of proceedings for levy of duty. Therefore, if the liability remains but proceedings cannot be initiated, there is no question of full payment of duty. In such a case, it cannot be stated in the certificate by the Controller that there is no claim of estate duty from the accountable person. Accordingly, the bar of limitation is not applicable to cases as provided under section 73A where an application is made for the grant of representation or a succession certificate and the account or the copy of the application is delivered to the Controller as required under section 56. Thus, this appeal by special leave. Mr. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mandatory in character, the requirement of that section cannot be dispensed with even by the court. That the party who seeks a succession certificate or representation in a civil court is bound to fulfil the statutory conditions without any exception is exactly the view taken by the Delhi High Court in P. C. Saxena v. State [1976] 104 ITR 106. Section 73A uses the word "levy". As to what exactly is meant by "levy" under the Act could be gathered from Padampat Singhania v. CED [1980] 122 ITR 162, 163 (All). Therefore, there is no merit in the plea. We shall now proceed to consider the relative merits of the respective submissions. Section 73A reads as follows: "73A. No proceedings for the levy of any estate duty under this 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." A careful reading of the above section discloses the following: (i) For the levy of any estate duty (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings is prescribed by section 58 of the Act. Sub-section (4) of section 58 provides that in any case where no account has been delivered as required by section 53 or section 56, or the person accountable fails to comply with the terms of the notice served under sub-section (2), the Controller shall make the assessment to the best of his judgment and determine the amount payable as estate duty. Under this provision assessment proceedings could be commenced by the Controller in case the requisite return has not been filed by the accountable person. But to all these modes of commencement of assessment proceedings, section 73A is applicable. Ex hypothesi assessment proceedings under either of these provisions could not validly be commenced after the expiry of the period of limitation prescribed by section 73A of the Act. Here, the proceedings were sought to be commenced on the basis of the return filed by the accountable person voluntarily but after the expiry of the prescribed period of five years. In view of section 73A, the Assistant Controller had no jurisdiction to commence the proceedings even on the basis of such a voluntary return. Our attention was invited to section 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to fulfil the statutory conditions, without any exception, before obtaining the certificate." We are of the view that this is only an authority for the proposition that the civil court does not possess any jurisdiction or discretion to waive the condition to produce the certificate from the Controller which is precedent to the grant of a representation or succession certificate. Now, we come to section 56. That is extracted below : "56. (1) In all cases in which a grant of representation is applied for (a) the executor of the deceased shall, to the best of his knowledge and belief, specify in an appropriate account annexed to the affidavit of valuation filed in court under section 19-1 of the Court fees Act, 1870 (7 of 1870), all the property in respect of which estate duty is payable upon the death of the deceased and shall deliver a copy of the affidavit with the account to the Controller, and (b) no order entitling the applicant to the grant of representation shall be made upon his application until he has delivered the account prescribed in clause (a) and has produced a certificate from the Controller under sub-section (2) of section 57 or section 67 that the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of a remainder, a reversion may pass, and a converso ; and if a lessee covenants to leave all the timber which was growing on the land when he took it down, but leaves it there ; for this, though a literal performance of the covenant, would defeat its intent." "In interpreting an Act of Parliament, likewise, it is not always a true line of construction to decide according to the strict letter of the Act ; but, subject to the remarks already made, the courts may consider what is, its fair meaning, and expound it differently from the letter, in order to preserve the intent. The meaning of particular words, indeed, in statutes, as well as in other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be attained." If, therefore, the object of section 73A is unambiguous to bar the commencement of any proceeding for levy after the period of five years in the case of first assessment, we do not think we can dilute the rigour of section 73A by introducing a construction not warranted in the situation. If it was the intention o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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