Kalyani Sundaram v. Assistant Controller of Estate Duty Madras & Another

PATHAK, CJ. These appeals by special leave are directed against the judgment and order of the High Court of Madras dismis- )­ sing the writ petitions filed by the appellant against the refusal of the .c first respondentto rectify an assessment order and pass consequential "'( directions. Shri Anantharamakrishnan, a reputed industrialist in Tamil Nadu, died intestate in Madras on 18 April, 1964. He left behind his D widow, Valli, his two sons, Sivasailam and Krishnamoorthy and two daughters, Kalyani and Seetha. Some time after his death, Sivasailam, j as an accountable person rendered the estate duty account. All the heirs, other than Sri Sivasailam, who were also accountable persons wrote to the Assistant Controller of Estate Duty on 15 December, 1964 that as accountable persons they agreed to abide by the accounts E rendered by Sri Sivasailam and any explanation furnished by him with regard to the Estate Duty case would be binding on them. Messrs. Amalgamations Private Ltd. (shortly referred to as 'Amalgamations') is a company which holds shares in most of the~ companies including Simpson and Company Ltd. (shortly referred 'to F -- as 'Simpson') of the group. By letter dated 27 April, 1965 Amalgama­ tions informed the assessing authority that the deceased had transfer­ red property in the form of shares in Simpson to it and that the deceased had controlling interest in that company at the time of his death. On 13 September, 1965 the assessing authority wrote to Amalgamations that the deceased had transferred 80,377 shares of G Simpson, and therefore Amalgamations was a controlled company within the meaning of s. 17 of the Estate Duty Act. By virtue of s. ·-j- 19( 1) of the Estate Duty Act the controlled company had to be regarded as one of the persons accountable for the estate of the deceased. Amalgamations was required to submit an account of the estate. Amalgamations filed a return before the Assistant Controller. H No objection was raised by the heirs of the deceased or by Amalgama- KALYANI SUNDARAM v. ASSTI. COLLECTOR [PATI!AK, CJ.I 237 tions to the latter being treated as an accountable person. A After due enquiry the assessment of Estate Duty was completed on 27 January, 1970 and the duty payable by the estate was determined at Rs.1,67,74,697.58, of which provisional duty had been paid in the amount of Rs.65,50,452.73 leaving a balance of Rs.1,02,24,244.85. The assessment order was addressed to Amalgamations as well as Sri B Sivasailam as accountable persons. The Assistant Controller of Estate Duty proceeded on the basis that Amalgamations was a "controlled company" and the deceased had control over its affairs, and therefore valuation of the shares held by the deceased in the company had to be made in the manner laid down in Rule 15 framed.~y the Board under s. 30( 1 )( e) of the Estate Duty Act. The principal value of the assets was . C determined at Rs.2,12,29,998· and the duty was computed at Rs.1,67,74,697.58. There was no appeal against the assessment by any of the accountable persons. Kalyani Sundaram, one of th'e daughters of the deceased artd the appellant before us, became entitled to the death of Anantharama- D kiishnan to a fifth share in his estate under the Hindu Succession Act. Her husband, K.S. Sundaram, as her agent constituted by power of attorney, wrote on 11 June, 1974 to the Assistant Controller seeking certain clarifications regarding the assessment. The Assistant Control- ler replied on 25 June, 1974 referring to the specific agreement of the accountable persons to abide by the accounts rendered by Sri Sivasailam and to be bound by any explanation given by him. The Assistant Controller referred to the fact that all subsequent proceed­ ings had been completed after discussion with Sri Sivasailam and \ Amalgamations and as the assessment had now become final it was not .J~ possible to enter into any discussion concerning it. ·. ·-t· On 2 January, 1975 the appellant's husband as agent filed an application under s. 61 of the Estate Duty Act contending that the assessment order was vitiated by several errors inasmuch as Rule' 15 prescribed only the method of valuation of the shares and debentures of the controlled company and the Rule was an appendage toss. 36 & 37 of the Act, that unless property was transferred without considera­ tion by the deceased to Amalgamations and some benefit accrued to the deceased from the company s. 17(1) of the Act would not be attracted, that the decision to treat Amalgamations as an. accountable person because of the transfer of shares rested on the transfer of shares made by the deceased, that on a number of aspects of the case the assessment order did not show any detail, and therefore a rectification A order should be made indicating the exact amount included under s. 17(1) of the Act as the property passing on the death of the deceased. He required this information, he said, to enable him to work out the amount which his principal had to pay to Amalgamations by way of reimbursement of the duty. If the apportionment of the duty had been effected by the order itself, he said, the need for rectification would B not have arisen. Section 61 empowers the Controller "to rectify any·mistake apparent from the record" at any time within five years from the date of the order passed by him. On 25 January, 1975 the Assistant Control­ ler passed an Order declaring that he was unable to discover any mistake which called for rectification in the assessment order and therefore he declined to act under s. 61 of the Act. This order was challenged by the writ petitions out of which the present appeals arise. The High Court dismissed the writ petitions. Sethuraman, J. held that there was no apparent error, and therefore no reason for D invoking s. 61 of the Act and Balasubramanyan, J. in a concurring judgment, held likewise and also dealt with other aspects of the case. Both learned Judges were of the view that the proceeding reflected a private dispute between the appellant and other members of the family, and that the forum and remedy selected by the appellant were not appropriate for that purpose. The fundamental question in these appeals is whether the app~l­ lant is right in invoking s. 61 of the Act. Learned counsel for the appellant contends that the heirs of the deceased on whom the estate devolves are liable to pay estate duty F attributable to the property which falls to their respective shares and that if an accountable person pays any part of the estate duty in respect of any property not passing to him he is entitled to reimburse­ ment by the person entitled to such property. This, says learned counsel, has no application in respect of the duty payable by virtue of s. 17 of the Act, which provides that the slice of the assets of a controlled G company shall be deemed to pass on the death of the deceased for the purposes of estate duty and the slice will be included in the property passing on his death if the deceased made a transfer of that property to the controlled company and benefit accrued to the deceased in the three years ending his death. The slice of the assets of the controlled company does not come to any heir; therefore no heir is called upon to H pay the amount of estate duty attributable to the inclusion of that slice KALYANI SUNDARAM v. ASSTI. COLLECTOR !PATHAK, CJ.] 239 . .., in the chargeable estate. Bys. 19 the controlled company itself is liable to pay the corresponding amount of estate duty. In the present case, A however, learned counsel urges, no slice of the assets of Amalgama- lions has been included in the estate of the deceased by the assessing authority as property deemed to pass on the death of the deceased and J therefore the demand issued to the.controlled company constitutes a '!'- mistake apparent from the record. The application of Rule 15 is also B contested and this, according to learned counsel, is a clear mistake committed by the Controller. It is urged that there is a mistake ap- - parent from the record in the directions requiring Amalgamations to --.f pay the entire amount of estate duty. y It seems to us that all the heirs other than Sisivaislam had agreed c that as accountable persons they would abide by the accounts rendered by Sisivaislam, and any information furnished by him with regard to the estate duty matter would be binding on them. The appellant cannnt be heard now to dispute the quantum of liability and the basis on which the liability was computed. Nor is it open to her to contend that it is not Amalgamations which is liable to pay the duty, but the D duty is payable by the heirs of the deceased. The assessment has be- come· final and no appeal. against it has been attempted. It was for the - /J. benefit of the heirs that there was general agreement to have the assessment made on Amalgamations and indeed when the assessment was completed and finalised, no objection was taken. The appellant acquiesced wholly and completely in the assessment to estate duty E being made on Amalgamations. No separate assessment was made on the appellant nor on the other heirs. The assessment was completed in 1970 and the entire estate duty has now been paid up. It was only after ). the entire estate duty was paid that the appellant filed the application for rectification on 2 January, 1975. It was contended by learned counsel for the private respondents that the appellant en joyed no locus standi in order to maintain the application under s. 61 and these appeals t.hereafter, but we do not propose to enter into this question .. Further, it appears that this litigation is woven around a private G * dispute among the family members. That is hardly any justification for invoking s. 61 of the Act. We have carefully perused the reasons given individually by the two learned Judges of the High Court and we are in complete agree- · ment with them that there is no mistake apparent on the record. H A In support of the contention that there was a mistake apparent on the record, learned counsel has referred us to Hari Vishnu Karnath v. Syed Ahmed lshaque and Others, [1955] 1S.C.R.1104, 1123; Hind Trading Company v. Union of India & Anr., [1969] 2 SCR 533; M.K. Venkatachalam, Income-Tax Officer and Another v. Bombay Dyeing B and Manufacturing Co. Ltd., [1958] 34 ITR 143, 149-50 and Commis­ sioner of Income-Tax, Madras v. Mr. P. Firm, Muar, [1965] 1 S.C.R. 815, 822 but having regard to the facts of the case before us we do not find anything in those cases which can be of assistance to the appellant. Learned counsel for the appellant states that having regard to the terms of the order granting special leave to appeal the appellant is C justified in requesting the court to consider the issues on the merits. We are unable to spell out such intent of the Court from the terms of the order granting special leave to appeal. We do not think that the observations of the Court in Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, [1964] 5 S.C.R. 174, 180 affect the position before us. The real question is whether the assessment was justified on Amalgamations or should it have been taken against the heirs of the deceased. In our opinion, that question stands concluded now and upon all the facts and circumstances of the case we do not think it permissible for the appellant to have recourse to s. 61 of the Act in E order to re-open the case. The appeals are dismissed, there is no order as to costs. Y.L. Appeals dismissed.