1981 PLP 197 (PTD)

(3) Every person accountable for estate duty under the provisions of this section shall, within six months of the death of the deceased or such later time as the (Controller) may allow, deliver to the Controller and verify to the best of his knowledge and belief, an account of all the property in respect of which estate duty is payable. (4) Where the person accountable knows of any property which he has not excluded in his account because he does not know its amount or value, he may state that such property exists, but he does not know the amount or value thereof and that he undertakes, as soon as the amount and value are ascertained, to bring a supple mentary account thereof and to pay both the duty for which he may be liable in respect of such property and any further duty payable by reason thereof for which he may be liable in respect of the property mentioned in the original account. (5) Where two or more persons are accountable, either in the same capacity or in different capacities, for estate duty in respect of the same property their liability is concurrent." According to learned Advocate for the respondents, the petitioner on the death of his father and grandmother acquired the properties in question by inheritance, which acquisition is covered by the words "other derivative title" in the above section and as such the petitioner is accountable person, under the provisions of section 53 of the Estate Duty Act, 1950 read with section 4 of the said Act. We have carefully considered the arguments advanced by both the learned counsel of parties and have considered the wording of section 53 of the Estate Duty Act, 1950. In our opinion on account of the wording of the said section, a person acquiring the properties of the deceased by "any derivative title" is accountable person. We are, therefore, of the opinion, that petitioner, who acquired the properties in, question by inheritance from his father and grandmother, is accountable person within the meaning o section 53 of the said Act read with section 4 of the said Act and a such, we find no force in this contention of the learned Advocate for the petitioner. In respect of the second contention, the learned Advocate for the petitioner submitted that since certificate under section 61(5) of the Estate Duty Act, 1950 was issued by the Department on 16‑5‑1964, the case in question could only be re‑opened under section 73 of the said Act, in case of fraud or suppression of material facts, as mentioned in the said section. In view of this, he submitted that notices dated 26‑5‑1977, 7‑9‑177, 22‑10‑1977 and 1‑1‑1979 do not disclose that these notices have been issued under the provisions of section 70 of the Estate Duty Act, 1950 and as such these notices are ultra vices of the said Act and without jurisdiction. The learned Advocate for the respon dents on the other hand submitted that notices dated 26‑5‑1977, 7‑9‑1977 and 22‑10‑1977 were issued before the file of the deceased in respect of assessment proceedings relating to his estate was traced and notice dated 1‑1‑1979 was issued after the petitioner had filed statement of account dated 12‑8‑1978 in response to letter, dated 3‑6‑1978, of the respondent No. 2 by which notice, under amended section 61 of the Estate Duty Act, 1950 was also sent. The learned Advocate for the respondent submitted, that petitioner has suppressed from this Court the said letter of the respondent No. 2 as well as the facts mentioned in the said letter. Respondents have produced with their counter affidavit the said letter dated 3‑6‑1978 as. Annexure R/9 and reply of petitioner's guardian dated 10‑6‑1978 as Annexure R/10. In view of this, the learned Advocate for the respondents submitted, that the present proceedings, which are pending before the respondent No. 2, have been initiated by respondent No. 2's letter dated 3rd June, 1978 and on the basis of notice under amended section 61 of the Estate Duty Act, 1950, in response to which the petitioner ultimately filed statement of account dated 12th August, 1978 in respect of the estate left by the deceased and therefore, the contentions of the petitioner in respect of notices dated 26th May, 1977, 7th September, 1977 and 22‑10‑1977, merit no consideration at all and the question of quash ing the said notices in view of the fresh proceedings initiated by respondent No. 2 vide his letter dated 3rd June, 1978 does not arise, as the present proceedings are no longer based on these three notices which are sought to be quashed by the petitioner, through this petition. We have taken into consideration the above contentions of the learned Advocates of the parties and have carefully gone through notice dated 3rd. June, 1978 issued by respondent No. 2 produced as Annexure R/9 with the counter‑affidavit as well as reply dated 10th June, 1978, of the petitioner's guardian to the said notice which is also produced by the respondent as Annexure R/10 with the said counter‑affidavit. It is clear from Annexure R/9 of respondent No. 2 and Annexure R/10 reply of the guardian of the petitioner, that present proceedings pending before respondent No. 2 have been initiated on the basis of notice under amended section 61 of the Estate Duty Art, 1950, which notice was sent to the petitioner alongwith Annexure R/9 and in response to these fresh proceedings, petitioner under protest filed statement of account of the assets left by the deceased K. B. Abdul Ghafoor Khan. In view of this factual position, the earlier notices dated 26‑5‑1977, 9‑9‑1977 and 22‑10‑1977 which are sought to be quashed as without jurisdiction, have no bearing on, the present proceedings pending before respondent No. 2 and as such the present petition which is filed against the issuance of said notices has become in fructuous in our opinion and consequently it is not necessary for us to express our opinion regarding the validity of said notices and the jurisdiction of respondent No. 2 to have issued the same. As far as notice dated 9‑1‑1979 is concerned the same was sent in reply to the statement of account filed by petitioner on 12‑8‑1978 in response to notice dated 3‑6‑1978 and we shall deal with this later on in our judgment so also with the contention of the learned Advocate for petitioner regarding effect of certificate issued under sections 61 and 63 of the Estate Duty Act, 1950. The third contention of the learned Advocate for the petitioner, that petitioner has acquired vested rights in the properties of the deceased in view of certificate dated 16‑5‑1964 issued under section 61 (5) of the Estate Duty Act, we are of the considered opinion, that such certificate is always subject to the provisions of section 61 and section 70 of the Estate Duty .Act and as such if any proceedings after the issuance of such certificate, are initiated by the Department the result of such 'proceedings‑ will effect the rights acquired by the petitioner, even if such rights are held to be vested rights acquired by the petitioner in respect of the properties left by the deceased K. B. Abdul Ghafoor Khan, in view of the wording of amended section 61 of the said Act. We may mention here that section 61(1) of the Estate Duly Act, 1950 as it stands today was substituted in places of an old section by Finance Act, 1977 and reads as under :‑‑ "Escaped Assessments and penalty for non payment.‑(1) If, for any reason, it is discovered that property on which estate duty is payable has escaped assessment or has been under‑assessed or too low a valuation (including a subsequent valuation) was placed on such property or any property was omitted or excessive relief was allowed on account of deductions in respect of debts, expenses liabilities, or successive, erroneous or inadmissible exemptions were allowed, the Controller may require an accountable person to submit an account of all property (including property, if any, which was omitted) within such time as may be specified by him in this behalf and the provisions of sections 57 , 58‑A, 58‑B, 62 and 63 shall thereupon apply as if the said accounts were the accounts, which an accountable person is required to submit under sections 53 and 56: Provided that nothing contained in this subsection shall apply after the expiry of one year from the date of the order allowing excessive, erroneous or in admissible exemption."' The above section, as it stands today, gives power to the Department, to re‑open the assessment made in respect of the assets left by a deceased, if it is discovered subsequently in respect of such assets on which Estate Duty is payable, that too low valuation was placed on such assets or any such property was omitted or excess relief was allowed on account of deduction in respect of such debts, expenses or liabilities, to call upon accountable person to submit an account of all such properties and once this is done the provisions of section 58 (1), 58‑B, 62 and 63 shall thereupon apply as if the said accounts, were the accounts, which any accountable person is required to submit under sections 53 and 56 of the said Act. Consequently, in our opinion, if the proceeding have been commenced and/or initiated under section 61 (1), certificate issued under section 61 (5) or 63 ipso facto became subject to the result of the proceedings so initiated by the Department. Even the wording of section 70 of the Estate Duty Act, 1950 which is subsequent to sections 61 and 63, suggests, that the certificate issued under section 61 or 63 does not take away the powers of the Department to re‑open the proceed ings in cases of Baud or failure to disclose material facts by the accountable persons. In view of these observations of ours, we do not find any force in this contention of the learned counsel for the petitioner. The fourth contention, raised by the learned counsel for the petitioner before us was, that the provisions of section 61 of the Estate Duty Act, 1951 are not at all attracted for re‑opening of the assessment already made in respect of the assets left by deceased Khan Bahadur A. G. Khan, has also no force, as notice under section 61 of the Estate Duty Act, 1950 which was issued to the petitioner, not only states the suppression of the material facts in respect of certain properties left by the deceased but gives specific details in con nection with such suppressed facts. In this connection w would like to reproduce notice dated 3rd June, 1978, which is Annexure R/9 to the counter affidavit filed by the respondents in the above petition, which reads as under: - "C. No. VIII/ 1/D/77‑1457 Government of Pakistan, Department of Estate Duty 1st Floor, Court (Near Hotel Geneva) Sohrab Katrak Road, Saddar, Karachi. [Karachi, dated June, 3, 1978] To, Master Abdul Aziz Ghafoor Khan, through Legal Guardian Mrs. Jehan Ara Qureshi, 40 Delhi Cooperative Housing Society, Bahadur Shah Zafar Road, Karachi. Subject.‑Estate Duty Property left by late Mr. A. G. Khan, Karachi. Please find enclosed Notice under section 61 of the Estate Duty Act, 1950 in respect of the estate led by the above‑named deceased person. The original valuation of the deceased's estate was made on 12‑5‑1964 on a net value of Rs. 2,45,

189. However, for the reasons hereunder mentioned I am led to believe that the property of the deceased has been under assessed or too low a valuation has been placed on such property (1) Murree Club Estate: The value of this property has been determined in the original order at Rs. 3,00,000 whereas the value declared by the deceased himself in his wealth statement filed with the Income‑tax Department, copy of which is available on record, for the period pending 31‑3‑1958 1. e. 3 years prior to his death was 1?s. 5,00,000 including development costs up to 1952. (2) T. P. X. Yard: In the original order the value of this property has been taken at Rs. 55,000 while the property was purchased by the deceased in 1948 for Rs. 73,500 and in the wealth statement for the period ending 31‑5‑1958 the deceased showed its cost at Rs. 75,000. (3) Amounts due: In a letter addressed to the Income‑tax Officer, B‑Division, Karachi, to explain the investments made by Begum Husan Ara A. G. Khan, the deceased has mentioned that an amount of Rs. 2,59,042 has been advanced by him for the construction of properties by Mrs. A. G. Khan in Lahore. Thus the above amount of Rs. 2,59,042 was due to the deceased, which was not declared inn tire E. D. 1 Form. (4) L1ablllty Payable to: (a) Muhammad Ishaq Rs. 50,000 In the original order the above liabilities was allowed whereas it is inadmissible under section 45 of the Estate Duty Act, 1950 as this debt was not created wholly for the deceased own use and benefit but was for the benefit of his sort and/or wife. (b) Cal. Khushi Muhammad Rs. 42,789 In the E. D. 1 Form liability in the name of Col. Khushi Muhammad has been claimed at Rs. 202 and Rs. 42,789 has been claimed at a liability of Mrs. A. G. Khan. Whereas in the assessment order the liability of Rs. 42,780 in the name of Col. Khushi Muhammad has been wrongly allowed. As original liability due to Mrs. A.

0. Khan it is also not allowable in view of the fact as discussed in paragraph 3 above. The previous notices issued under section 58‑B on 7‑9‑1977 under sec tion 61 on 22‑10‑1977 are hereby withdrawn. (Sd.) . for Laiq Ali Khan, Deputy Controller of Estate Duty, Karachi It is clear from the above letter dated 3rd June, 1978, that the Murree Club Estate of the deceased was valued by the deceased himself on 31‑3‑1958 at Rs. 5 lass and T. P. X. Yard property was purchased by the deceased in 1948 for Rs. 73,500 and its value in the wealth statement for the period ending 31‑3‑1958 was shown as Rs. 75,000 by the deceased and as such the assessment of these two properties in the year 1964 at Rs. 3,55,000 on the basis of 1961 valuation prima facie is low, on account of non‑disclosure of material facts by the accountable person at the time of the assessment of these properties for the purposes of Estate Duty in 1964. Similarly, in the above letter it is mentioned that deceased by his letter addressed to Income‑tax Officer, 13‑Division, Karachi, had mentioned that he had a advanced a sum of Rs. 2,58,402 to his wife for purposes of construction of properties by her in Lahore and this amount was not disclosed in E. D. 1 Form filed by the accountable person in respect of the assessment of the Estate Duty of deceased Khan Bahadur Abdul Ghafoor Khan. Besides these facts, certain other facts in respect of non‑disclosure of material facts at the time of adjudication of the Estate Duty in respect of the assets left by the deceased have been pointed out in this letter and as such, the contention of the learned counsel for the peti tioner, before this Court, that the case has been re‑opened on the basis of arbitrary revision of the valuation of the properties left by the deceased has no force, as prima facie, proceedings for reassessment of the assets left by the deceased have been opened on the basis of material facts which wee suppressed at that time and as such in our opinion provisions of section 61 of the Estate Duty Act, 1950 are attracted, on the basis of which present pending proceedings have been initiated, on the basis of notice dated 3‑6‑1978. The other contention of the learned counsel for the petitioner, that provisions of section 65 and section 74 (b) of the Estate Duty Act, 1950 shows the intention of Legislature to limit the time for termination of the proceedings finally under the provisions of the Estate Duty Act, 1950 and as such re-openings of the present case after lapse of 13 years, is not warranted at all. ‑In this connection, the learned counsel for the petitioner has relied on case reported in P L D 1961 S C

375. According to this authority, in order to discover the true intent of the Legislature in respect of any particular section of the statute, it was necessary to read the whole act, in order to discover the true intent of the Legislature. On the basis of this authority, the learned counsel for the petitioner submitted that the intention of the Legislature to give finality to the proceedings initiated under the provisions of Estate Duty Act, 1,950 is clear from the provisions of sections 65 and 74 (b) as well as from the proviso incorporated in section 16 (1) vide Finance Act of 1977) and, therefore, the learned counsel for the petitioner submitted, that reopening of the case of the deceased after 13 years was not at all warranted by law. We have carefully taken into consideration these submissions of the learned counsel for the petitioner and in view of the fact that neither section 16 (1) as it stands at present nor section 70 of the said Act prescribes any limit reopening of assessment made in respect of the properties of the deceased under the said Act in cases of fraud or suppression of material facts, we are not impressed with this contention of the learned Advocate for petitioner. The contention of the learned counsel for the petitioner, that the provisions of section 61 (1) of the Estate Duty Act, 1950 are not attracted for reopening the deceased's assessment on the basis of the facts mentioned in Annexure R/9 produced by respondent No. 2, alongwith his counter affidavit, have also no force, in view of above observations of ours. However, we would like to mention, that the contentions raised by the learned counsel for the petitioner that the new proposed valuation is not justified and or that there are no basis for reopening of the assessment dated 12‑5‑1964 on various other grounds mentioned in the petition, could be raised by the petitioner before the respondent No. 2, who is competent to hear such objections and disposed them of. Further, we are of the opinion, that in view of the alleged suppres sion of material facts as disclosed in respondent's No. 2 letter dated 3rd June, 1978 Annexure R/9, the certificate issued under section 61 (5) dated 16‑5‑1964 is no bar to reopening of the said assessment under section 61 (1) of the said Act as it stands at present. The bar of one year, mentioned in provision of section 61 (1), relates to reopening of the assessment on the basis of excessive, erroneous or inadmissible exemptions allowed under the previous order but this proviso does not apply to the cases where the deceased properties have been under‑assessed or too low valuation was placed on them. However, if the respondent No. 2, in the proceedings initiated vide his letter dated 3rd June, 1978, vide Annexure R/9 revises the original order in respect of items to which this bar of one year proviso is applicable, the petitioner will have a right to raise such objections, which are in the competence of' respondent No. 2 to bear, and dispose of in the proceedings, which are pending before him. The last and final submission which was addressed to us on the pre liminary objection raised by the learned counsel for the respondent regarding maintainability of the above petition, by the learned counsel for the petitioner was, that since notice dated 26‑5‑1977, 7th September, 1977 and 22nd October, 1977 were not based on the provisions of section 61 (1) as it stands at present nor any allegations were made in the said notices regarding suppression of material facts and/or fraud as contemplated by section 70 of the said Act, the proceedings initiated by the respondent No. 2 were without jurisdiction, has also no force, in view of the fact, that proceedings initiated by notices in question were dropped by letter dated 3rd June, 1978 Annexure R‑9 to the knowledge of the petitioner and it is clear that the petitioner in his petition suppressed this letter arid his reply to the same vide Annexure R‑10 and in fact the petitioner ought to have challenged, if at all, this letter and notice under section 61(1) issued to him with this letter, in the above petition, but he failed to do so, perhaps because, the petitioner was fully aware of the fact, that the material disclosed in respondent's No. 2 letter dated 3rd June, 1978 yrima facie gave jurisdiction to the respondent No. 2 to reopen the assessment of the deceased properties made vide order dated 12th May, 1964. The reliance placed by the learned counsel for the petitioner on P L D 1975 S C 450; P L D 1957 Kar. 874; (1977) 35 Taxation 149 and (1976) 1 Account. Tax. 459 for the maintainability of the above petition has no force, as the facts of these cases are quite different from the present case of the petitioner, in view of Annexure R‑9 which was suppressed by the petitioner and as such on the basis of the facts disclosed in Annexure R‑9, prima facie, the jurisdiction of respondent No. 2 to issue notice under section 61(1) as amended in 1977 is there and as such the petitioner's contention made at the bar that the proceedings initiated before the respondent No. 2 even by letter dated 3‑6‑1978 are also without jurisdiction and or contrary to the provisions of the Estate Duty Act, 1950, has no force in our opinion. The learned counsel for the respondent in this connection has relied upon cases reported in P L D 1958 Kar. 211 and P L D 1978 Lah. 1331, both these authorities fully support the contentions advanced by the learned counsel for the respondents, that the above petition is not maintainable. There is also unreported decision of this Court, given in Constitutional Petition No. 1043/80, which also supports the contentions of the learned counsel for the respondents, that the above petition is not maintainable, as the petitioner has rushed to this Court prematurely, on issuance of notices, one of which dated 3rd June, 1978, he deliberately suppressed and referred only to the notices which were withdrawn by the said notice. In view of this, we are of the opinion that this petition is not maintainable, as the pending proceedings under section 68(1) of the Estate Duty, Act, 1950, which have been initiated on the basis of facts disclosed in Annexure R‑9, are prima facie within the jurisdiction of the respondent No. 2 to initiate. Further, as the petitioner, for the reasons best known to him, suppressed Annexure R‑9 from this Court and as such has riot come with clean hands to this Court and this ground alone, the above petition is liable to be dismissed. No other grounds have been urged before us by the learned Advocate for the petitioner. . In view of the above conclusions arrived at by us, we see no force in the above petition, which is dismissed with costs and ad interim order of stay dated 23‑5‑1979, and .25‑2‑1980, are hereby vacated. Petition dismissed.