CONTROLLER OF ESTATE DUTY Vs. R BRAHADEESWARAN

JUDGEMENT

(1.) THERE are two questions for our consideration in this estate duty reference. The second question is as follows :

(2.) THE answer to this question has been supplied by the Tribunal themselves citing a decision of a Division Bench of this court in Devaki Ammal v. Asst. CED. In that case, it was held that section 34(1)(c) of the Estate Duty Act, 1953 (hereinafter called "the Act"), which enjoins the clubbing, along with the deceased's undivided share in Mitakshara coparcenary property, of the share or shares of the deceased's lineal descendants, is inconsistent with article 14 of the Constitution and, therefore, void. The Tribunal had to give effect to the decision of this court striking down section 34(1)(c) as unconstitutional in the manner aforesaid. Their decision not to sustain the inclusion of the lineal descendant's share in the principal value of the deceased's estate was, therefore, quite in keeping, as it ought to be, with the decision of this court in V. Devaki Ammal's case. Our answer to the question, therefore, is in the affirmative and against the Department.

(3.) AS we earlier pointed out, the Tribunal had upheld the contention of the accountable person that the lineal descendant's share cannot be clubbed along with the share of the deceased for ascertaining the dutiable estate. This point, however, was raised by the accountable person for the first time before the Tribunal. The accountable person did not raise this matter either before the Assistant Controller at the time of assessment or before the Appellate Controller at the stage of appeal against that assessment. The Department's contention before us is that the accountable person, not having put forward this contention at earlier stages, was precluded from raising this point for the first time in the appeal before the Tribunal. Mr. Jayaraman, learned standing counsel for the Department or the Controller of Estate Duty, referred to the language of section 63(1) of the Act and pointed out that the provision speaks of an accountable person objecting to any order passed by the Appellate Controller. The objection to the order, he said, must be the basis of his appeal before the Tribunal. Learned counsel suggested that an accountable person can really raise an objection to the order of the Appellate Controller on a particular point, only if he had raised that point before the Assistant Controller and had failed to carry conviction. Learned counsel submitted that the accountable person cannot, under section 63, make a grievance of the Appellate Controller's order, or blame the Appellate Controller, for not having dealt with a point which was not raised before him at all. On the basis of this reasoning, learned counsel submitted that it was not open to an accountable person in this case to object to the order of the Appellate Controller in the further appeal before the Tribunal on a brand new point of law or fact.We think that too much is read into the expression