CONTROLLER OF ESTATE DUTY Vs. MANORAMA DEVI SMT

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal, Allahabad Bench C, has referred the following two questions for opinion of this court:

(2.) THE dispute concerns the estate of Smt. Asarfi Devi, who died on the 23rd September, 1959. THE accountable person did not file an account of the estate within the six months period granted under Section 53(3) of the Act. On the 18th of February, 1963, the Asst. CED issued a notice under Section 55 of the Act, which was served on the accountable person on the 5th of March, 1963, calling upon him to deliver the account of the estate of late Smt. Asarfi Devi. In response to this notice, Smt; Manorama Devi filed a return in Form ED-5 on April 1, 1963, and also took up the stand that the notice and the proceedings were invalid. It appears that after the return was filed in Form ED-5, a notice under Section 58(2) was issued, and served on the accountable person on April 1, 1963, As the accountable person did not comply with the terms of the notice the Asst. Controller made a best judgment assessment under Section 58(4) of the act. THE appeal filed against this order before the Asst. Controller failed. THE matter was then taken up before the Tribunal, by the accountable person. THE Tribunal has allowed the appeal, and held that the best judgment assessment made under Section 58(4) was invalid. THE reasons for the Tribunal's holding to this effect may be indicated. It has taken the view that an account can be filed only within a period of six months from the date of the death, and inasmuch as in the present the account had been filed beypnd the aforesaid period the return was invalid, and as such a best judgment assessment under Section 58(4) could not be made. It has also held that as the account delivered was in Form ED-5, and was not complete in all respects, the return filed was non est and as such no notice under Section 58(2) could be issued, and as a consequence no best judgment assessment could be made under Section 58(4). It indicated that the proper course to adopt was to take proceedings under Section 59. We propose to consider the second question first. In order to answer this question, it is necessary to extract relevant portions of Sections 53 and 58 of the Act.

(3.) BEFORE disposing of the reference, in which unfortunately we did not have any assistance on behalf of the assessee as none has appeared on her behalf, it is necessary to consider one other contention raised on behalf of the accountable person before the Tribunal. The contention was that an account filed in Form ED-5 was not an account fulfilling the requirements of Section 53, and as such could not be treated as an account filed under Section 53. The requirement of filing an account in the prescribed form, which is either ED-1 and ED-5, goes with an account filed under Section 53(3), and not with an account which is treated to be one under Section 53(1). In the present case, as we have held that the account filed in response to a notice under Section 55 is one which is under Section 53(1), the requirement of Section 53(3) need not be strictly complied with.