ANAND BALAL BHUSHAN Vs. CONTROLLER OF ESTATE DUTY

JUDGEMENT

(1.) This is an application for recalling the order dated July 5, 1989, passed by this court. By the said order an application under Section 64(3) of the Estate Duty Act, 1953, filed by the applicant being Estate Duty Application No. 328 of 1988 was dismissed. The ground for recall is that learned counsel for the applicant, for good and sufficient reason, could not appear before the court when the order dated July 5, 1989, was made. We were also addressed on the merits of the controversy involved in the application under Section 64(3) aforesaid.

(2.) Before going into the question of sufficiency of cause for non-appearance, we may take note of the other arguments of the applicant. It was argued that the assessment order which purports to be a provisional assessment and is so labelled was, in fact, a regular and final assessment order, inasmuch as, on the facts of the present case, the assessing authority has no jurisdiction to pass a provisional assessment order.

(3.) We feel it is not necessary for us to go into this question. However, the appellate authorities including the Income-tax Appellate Tribunal have held otherwise. Assuming without deciding that the Assessing Officer was incompetent to make a provisional assessment all that follows from this argument is that the impugned assessment was non est or without jurisdiction. This, however, does not detract from or in any way curtail the power of the Assessing Officer to make the final assessment order. It is admitted by the applicant that the impugned assessment was not only labelled and expressed to be made as a provisional assessment under Section 57 of the said Act, but also a regular assessment subsequently made, examining all claims put forward on behalf of the applicant . The question whether the present assessment was only a provisional assessment or final assessment is wholly academic. The applicant's own case was that the provisional assessment was without jurisdiction. We do not agree with learned counsel for the applicant that, since the assessing authority had no power to frame the provisional assessment, it is well settled that no reference can be granted for an academic question.