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Smt. R.D. Chand Vs. Central Government and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 2041 of 1971
Judge
Reported in[1977]108ITR717(AP)
ActsConstitution of India - Article 226; Estate Duty Act, 1953 - Sections 52
AppellantSmt. R.D. Chand
RespondentCentral Government and anr.
Excerpt:
direct taxation - estate duty - article 226 of constitution of india and section 52 of estate duty act, 1953 - petitioner unable to pay estate duty - filed application under section 52 to central government requesting government to take over property of equal value in order to discharge estate duty payable - central board of direct taxes refused to accept property against arrears of estate duty - section 52 confers discretion on central government to take property in lieu of arrears - refusal to accept property cannot be challenged. - - even otherwise, as stated above, as we are satisfied that it is the central government which took the decision, the writ petition loses all its force......of his property. 3. the assistant controller by his order dated december 30, 1968, assessed the estate duty leviable at rs. 2,64,726*91. the assessment order was served upon the petitioner in january, 1969. the petitioner thereafter applied under section 52 of the estate duty act, 1953, to the central government on february 15, 1969, requesting the government to take over the property of the equal value in order to discharge the estate duty payable by her. since no reply was received she filed another application on january 16, 1970. 4. by the impugned order the central board of direct taxes, new delhi, informed the petitioner that the board after reconsidering her request regret their inability to accept the property offered by her against the arrears of estate duty demand. 5. two.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This is an application filed under Article 226 of the Constitution for the issue of a writ of certiorari to quash the order dated January 15, 1971, and to direct the 1st respondent, the Central Government, to dispose of the petition filed by the petitioner on January 16, 1970, in accordance with law.

2. What happened in the case was that one Prof. Kishenchand died on January 13, 1961. The petitioner is his widow. She is also the administrator of his property.

3. The Assistant Controller by his order dated December 30, 1968, assessed the estate duty leviable at Rs. 2,64,726*91. The assessment order was served upon the petitioner in January, 1969. The petitioner thereafter applied under Section 52 of the Estate Duty Act, 1953, to the Central Government on February 15, 1969, requesting the Government to take over the property of the equal value in order to discharge the estate duty payable by her. Since no reply was received she filed another application on January 16, 1970.

4. By the impugned order the Central Board of Direct Taxes, New Delhi, informed the petitioner that the Board after reconsidering her request regret their inability to accept the property offered by her against the arrears of estate duty demand.

5. Two contentions were raised before us. It was, firstly, contended that according to Section 52 of the Estate Duty Act, it is the Central Government which ought to consider and dispose of the application and not the Central Board of Direct Taxes.

6. It is true that under Section 52 it is the Central Government which is empowered by the legislature to dispose of the application filed in that behalf. But from the counter it appears that it is the Central Government which considered the applications and disposed them of. Paragraph 4 of the counter says:

' It is submitted that Section 52 of the Estate Duty Act vests discretion in the Central Government to accept a property or not. The letter dated 15th January, 1971, intimating non-acceptance of the offer of the petitioner was signed by the Under Secretary, Central Board of Direct Taxes, who is also ex-officio Under Secretary to the Government of India. The discretion in this case was actually exercised and the decision rejectingthe offer was taken by the Central Government. The communication ofthis decision by the concerned Under Secretary was, therefore, dulyauthorised.'

7. Even in paragraph 5 of the counter it is reiterated :

'In view of these and other relevant factors a decision was taken by the Central Government not to accept the offer and the accountable person was duly informed of the same.'

8. In view of this categorical statement made by the Central Government in the counter that it is the Central Government which took the decision although it is the Central Board of Direct Taxes through which the said decision was communicated and though that letter does not make any reference to that, we have no reason to disbelieve what is stated in the counter. The communication may be unhappily worded and does not make any reference to the authority which actually took the decision. In the counter, however, it is made very clear. Since the applications were considered and rejected by the Central Government we do not think any case arises for quashing the order merely because it is defective in form. Even if that order is quashed and the Central Government is now asked to consider and dispose of the application, in view of the counter no other result than what is stated there is likely to be produced.

9. Neither writ of certiorari, therefore, is possible, nor any mandamus is going to be useful in the circumstances of the case. Even otherwise, as stated above, as we are satisfied that it is the Central Government which took the decision, the writ petition loses all its force.

10. The second contention was that the order is not a speaking order, and, therefore, it should be quashed. We do not think that is a valid ground on the basis of which we can quash the order. It must be remembered that Section 52 of the Estate Duty Act confers a discretion upon the Central Government to take a property in lieu of arrears or not. The counter gives the reasons as to why the Government does not consider it advisable to take the land in lieu of the arrears. We are, therefore, not inclined to quash the order on that ground. Since no other contention was raised the writ petition is dismissed with costs. Advocate's fee Rs. 100.


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