JUDGMENT

MOHAN, J.:- This appeal by special leave is directed against the judgment and order of the Calcutta High Court dated 23rd May, 1980 in Appeal No. 348 of 1973.

2. The facts are that on 6th Feb. 1967 one Ganga Singh, governed by Mitakshara .School of Hindu Law, died intestate. He left two sons, the appellant and one Binod Singh. The wife of Ganga Singh had predeceased him. As the appellant and Binod Singh were minor at the time of death of Ganga Singh the maternal uncle of the appellant moved an application in the City Civil Court at Calcutta in March 1967 for the appointment of guardian of the appellant and his brother. Accordingly, he was appointed as the guardian. When the paternal uncle of the appellant and his brother appealed against the order, the appointment was confirmed. However the guardian was directed to continue till the appellant attained majority.

3. On 7th December, 1970 the appellant attained majority. As karta he applied to the City Civil Court at Calcutta for the grant of a succession certificate in respect of the estate of Ganga Singh. It appears that the guardian never filed the account of the property on the return as required u/ S. 53 or 56 of the Estate Duty Act, 1953 (hereinafter referred to as the Act). The appellant being a minor did not know about this. The result is that no account had been filed by any person in respect of the estate of Ganga Singh within five years from the date of his death.

4. In the proceedings before City Civil Court for the grant of succession certificate it was pointed out that a certificate from Estate Duty Authority was necessary u/ S. 56(2) of the Act. It was urged on behalf of the appellant that in view of S. 73A of the Act the time to commence any proceedings for levy of estate duty had become bared inasmuch as five years had expired from the date of the death of Ganga Singh. Hence, the question of production of certificate u/ S. 56(2) would not arise.

5. By an order dated July 25, 1972 the learned Chief Judge of the City Civil Court held that he could not go into this question since the authorities constituted under the Act alone could decide this. Since the appellant was advised to file an account to the Estate Duty Authority, he filed the return on 18th August, 1972 with the Assistant Controller of Estate Duty. As per the return the estate was valued approximately at Rs. 52,000 / -. The appellant was served with a notice under S.58(2) along with a questionnaire by the first respondent, the Assistant Controller of Estate Duty, fixing the date for hearing. On the said date of hearing the appellant contended that no proceedings could be initiated in view of the statutory bar under Section 73A, inasmuch as the period of five years had expired from the date of the death of Ganga Singh. Hence, no proceedings could be commenced. In spite of these objections, the first respondent adjourned the case calling upon the appellant to furnish certain particulars. It is under these circumstances the notice dated 4th of September, 1972 issued under Section 58(2) of the Act along with a questionnaire and the proceedings were challenged in the High Court of Calcutta by way of a writ petition in Matter No. 417 of 1972. The learned single Judge making the rule absolute held that the impugned notice u/ S. 58(2) of the Estate Duty Act, 1953, dated 4th September, 1972 was cancelled by a writ of mandamus.

6. Aggrieved by the said order, the first respondent took up the matter in appeal. The Division Bench considered the scope of S. 73A vis-a-vis Section 56 and concluded that S. 73A does not do away with the liability of an accountable person for payment of duty. It only bars the initiation of proceedings for levy of duty. Therefore, if the liability remains but proceedings cannot be initiated, there is no question of full payment of duty. In such a case, it cannot be stated in the certificate by the Controller that there is no claim of estate duty from accountable person. Accordingly, the