1. The Revenue seeks a direction in this reference petition to the Tribunal to refer the following question :
'Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that both on the question of jurisdiction and merits, the order under section 61 of the Estate Duty Act deserved to be cancelled ?'
as a question of law arising out of the order of the Tribunal for the opinion of this court.
2. The accountable person filed his return as regards the estate of late K. S. Subbanna Gounder showing the value of the deceased's share in the firm of M/s. Madras Wire Products as Rs. 1,29,625. The accountable person has also sent a balance-sheet of the said firm showing the value of the deceased's share at Rs. 3,79,336. To the balance-sheet the accountable person has appended a note explaining the reason for returning a value of Rs. 1,29,625 as against the balance-sheet value. The Assistant Controller of Estate Duty, while making the assessment under the E.D. Act, examined in detail the necessary records and also obtained clarification from the accountable person. He also scrutinised the income-tax and the wealth-tax records of the deceased and ultimately finalised the assessment taking the assessee's share in the firm of M/s. Madras Wire Products at Rs. 1,29,625 as returned by the accountable person as against the balance-sheet value of Rs. 3,75,336. Later, the same Assistant Controller rectified the said assessment purporting to act under s. 61 of the E.D. Act. He rectified the assessment order on the ground that the deceased's share in the firm, M/s. Madras Wire Products, was taken at Rs. 1,29,625 by oversight as against the correct figure of Rs. 3,75,336. In the rectification order, the Assistant Controller completed the assessment stating that the deceased's share in the firm M/s. Madras Wire Products, was Rs. 3,73,336 and not Rs. 1,29,625 as adopted in the original assessment.
3. Aggrieved by the rectification order of the Assistant Controller dated January 21, 1980, an appeal was preferred by the accountable person to the Appellate Controller of Estate Duty. Before the Appellate Controller, the assessee contended that the rectification of the original order of assessment under s. 61(1) of the E.D. Act cannot be legally sustained and that even on merits, the order of the Assistant Controller cannot be sustained. The Appellate Controller accepted the contention of the accountable person and held that as the Assistant Controller's records indicated that the statement annexed to the form of accounts clearly showed that the revaluation was only intended to improve the picture presented by the balance-sheet which prior to the revaluation was rather bleak by reason of accumulated losses, that the Assistant Controlled has considered this aspect of the matter before deciding to accept the declared value for the interest of the deceased in the firm and that the enhancement of the value effected by the order of rectification is based on a mere change of opinion on the same set of facts and that, therefore, the rectification order manifestly fell outside the scope of s. 61. In this view, the Appellate Controlled has not gone into the merits of the rectification order.
4. The Revenue took the matter in appeal to the Income-tax Appellate Tribunal. The Tribunal also has agreed with the view taken by the Appellate Controlled of Estate Duty and held that the value of the deceased's share in the firm of M/s. Madras Wire Products has not been accepted by the Assistant Controlled by oversight, that the acceptance was after a due consideration of all the materials placed before him including the balance-sheet which indicated the interest of the deceased's share at Rs. 3,75,336 and after the accountable person gave due explanation. Since the original order of assessment was passed by the Assistant Controlled, wherein the value of the deceased's share in the firm was taken as Rs. 1,29,625 after due deliberations and not by oversight, the Tribunal felt that the rectification under s. 61 of the E.D. Act cannot be made in this case.
5. Section 61 of the E.D. Act provides for rectification of an order passed earlier on a mistake apparent on the face of the record. Here, there is no mistake which is said to have occurred or committed by the Assistant Controlled. The assessee, in fact, filed a balance-sheet of the firm showing the interest of the deceased at Rs. 3,75,336. The accountable person has also given an explanation as to why he had shown the value of the share of the deceased in the firm at Rs. 1,29,625. The assessee has also appended a note as to why he has returned the value of the deceased's share in the firm at Rs. 1,29,625 as against the value shown for that share at Rs. 3,75,336 in the balance-sheet. In the face of the balance-sheet and also the explanation furnished by the accountable person, the Assistant Controller, after verifying the records, the income-tax file and the wealth-tax file relating to the deceased, accepted the return showing the value of the deceased's share in the firm at Rs. 1,29,625. Therefore, the determination of the value of the deceased's share in the firm cannot be said to have been made by oversight. If the value of the deceased's share in the firm has been accepted after due deliberation by the Assistant Controller, we do not see how it can be said to have been done by oversight. In this view, the decision taken by the Appellate Controller as well as the Tribunal that s. 61 could not be invoked in this case appears to be justified. We do not, therefore, see any justification for directing a reference in this case. The tax case petition is dismissed. No costs.