P L D 1958 (W (PLP)

WAHIDUDDIN, J.--‑ This writ petition is directed against the order of Mr. IVI. M. Siddiqi, Controller of Estate Duty, dated 26th July 1956. Briefly stated, the facts are that Mr. Jamshed Nusserwanjee, a Parsi resident of Karachi, died at Karachi on 1st August 1952. The Central Board of Revenue, Government of Pakistan, by their letter dated 18th September 1952, called upon the petitioner to submit account of the assets and liabilities of the deceased for the purpose of collection of Estate Duty under the provisions of the Estate Duty Act, 1950. Accordingly the petitioner, by letter dated 16th March 1953, submitted to the Board the account of the estate of the deceased and showed the net assets of the deceased as amounting to Rs. 1,31917‑12‑

3. The petitioner was asked on 23rd March 1953 to pay Rs. 7,950 as Estate Duty together with interest thereon amounting to Rs. 147, and on 6th April 1953 the petitioner paid the said amount. In the meantime the provisions of the Estate Duty Act, 1950 were amended and the Controller of Estate Duty was substituted for the Central Board of Revenue and several other amendments were made whereby the account of the property in respect of which Estate Duty was payable, was to be delivered to the Controller instead of the Board. Under the new section 54‑A the Controller was to have the same powers as were vested in a Court under the Civil Procedure Code. Under section 58‑A the Controller was given power to determine the valuation on the basis of which estate duty was payable, Under section 58‑D the Controller was empowered to serve notice of demand specifying the sum payable. Under section 59 appeal against the valuation made or estate duty determined by the Controller was to be made to the Appellate Tribunal which authority was again created under the Amending Act XV of 1953. Under section 59‑A application could be made to the Appellate Tribunal to refer questions of law only to the High Court. Under section 59‑B (2) appeal against the judgment of the High Court lay to the Federal Court, in case the High Court certified it to be a fit one for appeal. Several other material alterations were made in the said Act under the Estate Duty (Amendment) Act XV of 1953 and were made applicable from 3rd July 1953. After the amendment of the Estate Duty Act of 1950, the Controller of Estate Duty by notice dated 5th September 1953 informed the petitioner that the case of the estate duty of the late Mr. Jamshed Nusserwanji Mehta was fixed for 16th September 1953 for determination of the Estate Duty, and to attend his office with all evidence regarding the value of the estate and he was also called upon to bring verified copies of the accounts in the prescribed from in duplicate if not already furnished. By letter dated 23rd September 1953, the petitioner informed the Controller of Estate Duty that he has no jurisdiction in the matter and that the matter in dispute could only by con sidered by the Central Board of Revenue. On 19th December 1955 the Controller of Estate Duty called upon the petitioner to amend the valuation in accordance with the attached sheet on 29th December 1955, failing which the valuation shall be made as provided by section 58‑A of the Estate Duty Act. The petitioner in his letter dated 30th May 1956 discussed in detail the valuation fixed by the Controller of Estate Duty and again reiterated that without prejudice to his contention his case could not legally be considered by him. The Controller of Estate Duty by order dated 26th July 1956, after considering the objections raised by the petitioner, disposed of the matter and held that he had jurisdiction in the matter and fixed for the purposes of Estate Duty the final net value as Rs. 9,85,918 and called upon the petitioner to pay Rs. 2,43,016 as Estate Duty by. 30th August 1956. The petitioner has challenged the validity of the said order on twofold grounds Firstly, that the valuation of all properties had become determined by lapse of time, as no objection to the valuation was raised by the Board within twelve months from the date of deliver of the accounts, that the Controller of Estate Duty could not reopen under the Amending Act XV of 1953 any case which had already been finalized ; and secondly, on the ground that even if the, Amending Act XV of 1953 was given retrospective effect, by virtue of Clause 16 of Act I of 1956 (Finance Act of 1956), the matter cannot be re‑opened under section 74‑A, Mr. Dingomal, the learned counsel for the petitioner, has taken us through the original Act X of 1950, the Amending Act XV of 1953 and Clause 16 of the Finance Act I of 1956 and has urged that the provisions of Amending Act XV of 1953 were not given retrospective effect, that he had a valuable right in the determination of the question in dispute by the Central Board of Revenue and that under section 59 of Act X of 1950 the Board, if not satisfied with the accounts submitted, was only entitled to move the High Court to hold an inquiry into the matter and the finding of the High Court on such questions would be binding on the parties. According to the learned counsel this was a valuable right and the Board or the Central Government was not entitled to fix their own valuation in respect of the deceased's property. The learned counsel further contended that Amending Act XV of 1953 having taken away this valuable right, cannot be taken to have retrospective effect in this respect unless there is some specific provisions in the Amending Act giving the amendment retrospective effect, and the mere fact that the Central Board of Revenue transferred the proceedings pending before them to the Controller of Estate Duty under the amended provisions of the Estate Duty Act, cannot deprive the petitioner of this valuable right and the Central Board of Revenue continued or remained seized of the proceedings pending before them. The learned counsel in support of his contention relied on a decision of their Lordships of the Privy Council in The Colonial Sugar Refining Company Limited v. Irving (1905 A Q 369), and invited our attention to the following observations :‑‑ "The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of Act, or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal together and trans ferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general to principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." These observations of their Lordships, however, are not of any assistance in this matter as the amended section 58‑A, as amended by Clause 16 of Finance Act I of 1956, reads as under :‑ "58‑A. If the Controller is of opinion that the person deliver ing the account whether before or after the commencement of the Estate Duty (Amendment) Act, 1953, has under‑estimated the value of the property in respect of which estate duty is payable (whether by placing too low a value on the property included in the account or by omitting to include therein property that ought to have been included), the Controller may inquire into the matter in such manner and by such means as he thinks fit and, if still of opinion that the value of the property has been underestimated, may require such person to amend tile valuation, and if the valuation is not thereupon amended to the satisfaction of the Controller, the Controller may determine the valuation on the basis of which estate duty is payable." It will thus been seen that if the Controller is of opinion that the value of the property has been underestimated, in respect of the accounts filed whether before or after the commencement of the Estate Duty (Amendment) Act, 1953, he may require such person to amend the valuation and if the valuation is not amended to his satisfaction, he may determine the valuation on the basis of which A estate duty is payable. This provision, according to the amend ment, shall always be deemed to have been inserted in section 58‑A of the Estate Duty Act. There is a clear intention in the statute that section 58‑A has been given retrospective effect and is applicable to all the accounts and to all the persons, whether filed after the incorporation of section 58‑A or before it. In the face of such a clear provision, we are clearly of the opinion that the contention raised by the learned counsel for the petitioner is without any substance. The argument of the learned counsel for the petitioner that although the amendments made by Finance Act I of 1956 in the Estate Duty Act X of 1950 was retrospective but it cannot affect the vested right of the petitioner, is not well‑founded and cannot be accepted as a sound contention. Once the Legislature has given to a provision of law retrospective effect, it shall have to be considered to be in existence from the time it has been given retrospective effect. Clause 1 of Finance Act I of 1956 makes it very clear that section 58 shall be deemed always to have been inserted in Act X of 1950. Under these circumstances there is not the slightest doubt in our mind that section 58‑A was in existence in March 1953 and will hit the case of the petitioner even if it affects his vested right. The other contention of the learned counsel for the petitioner that the Controller of Estate Duty could not reopen the question of estate duty of the deceased's estate in view of the provisions of section 74‑A of the Estate Duty Act, 1950, is also without any foundation. Section 74‑A reads as under :‑ "74‑A. Controller's powers also retrospective. Nothing in this Act as amended by the Finance Act, 1956 shall be deemed to empower the Controller to re‑open and redetermine any case decided by a High Court or by the Board determining finally the rights or liabilities of any party under this Act." We called upon the learned counsel for the petitioner to show us whether the Central Board of Revenue had at any time finally determined the right or liability of the party under Act X of 1950, but the learned counsel was unable to point out any such order of the Central Board of Revenue. On the contrary, he contended that as the Central Board of Revenue did not take any action under the old section 53 of Act X of 1950 within one year, it should be taken that the matter was finally determined by the Central Board of Revenue and the rights or liabilities of the parties were no longer in question. It is admitted by the learned counsel for the petitioner that the proceedings pending before the Central Board of Revenue were transferred for decision under section 58‑A of Amending Act XV of 1953. This clearly shows that the Central Board of Revenue never treated the case of the petitioner as closed and for this reason they transferred the proceedings for further action to the Controller of Estate Duty. There is no substance in the contention that as the Board of Revenue did not call upon the petitioner to modify the accounts within twelve months of their submission, the matter should bet taken to have been finally determined within the meaning of section 74‑A. Section 74‑A applies only to those cases where either twelve months have expired and the accounts submitted have not been challenged or where the accounts have been challenged and after consideration the Board has arrived at certain conclusions. These features are missing in the present case. In fact, the mere fact that the Board of Revenue transferred the) case of the petitioner to the Controller of Estate Duty for consideration shows that they never treated the matter under consideration as closed. Mr. Dingomal vehemently argued that under the Act as it existed prior to July. 1953, the accounts could be amended by the Controller or the Central Government, that the question could only be determined by the High Court on a motion by the Board of Revenue and that these were vested rights and could not be taken away by the amending Act as the matter was already closed much earlier than 1956. These arguments, though attractive, are also not tenable. The Legislature has ample power to divest the vested interest by Legislation of a retrospective nature. This is what has actually happened in respect of the cases covered b the Estate Duty Act. The learned counsel has failed to satisfy us that the Legislature cannot pass legislation of this nature. In this case neither the Central Board of Revenue made any final decision determining the rights and liabilities of the party under the Estate Duty Act nor the High Court took any decision in the matter. In fact, the matter in dispute never reached the stage where it could be taken by the High Court. In July 1953 when the amendment in the Estate Duty Act was made, the petitioner's matter was pending before the Central Board of Revenue. Under the Amending Act the scheme was changed and instead of the Central Board of Revenue the matter was to be dealt with by the Controller of Estate Duty. The Central Board of Revenue there fore transferred the matter to the Controller of Estate Duty. As these amendments have been given retrospective effect we are clearly of the opinion that the Controller of Estate Duty had jurisdiction in the matter and he has rightly decided the question as falling within his jurisdiction. We, therefore, find no force in the contentions raised by the learned counsel for the petitioner, and for the reasons given above, dismiss the petition with costs. This will, however, not prejudice the right of the petitioner to move the Controller of Estate Duty to refer the matter to the High Court under the relevant provisions of the Estate Duty Act and claim other reliefs for the protection of his rights. Mr. Dingomal orally requested that this is a fit case for grant) of a certificate under Article 158 of the Constitution of the Islamic Republic of Pakistan and that the petitioner should be granted a certificate to file an appeal against this order to the Supreme Court of Pakistan. The matter requires consideration and he should make a separate petition for that purpose. A. H. Petition dismissed.